Clinical negligence claims – What to expect - Scotland

Summary

A clinical negligence claim is a demand for financial compensation for alleged harm caused by substandard clinical care. Common reasons for claims include failure or delay in diagnosis, or incorrect treatment. In fact, many claims arise out of poor communication. This factsheet outlines the main stages in the legal process of a claim and what it means for you. If you receive a complaint, and this is not being dealt with by your NHS or other employer, you should contact MPS immediately.

The burden of proof

In order to bring a successful claim against you, the patient, or other person bringing the claim, has to prove on the balance of probabilities:

• Breach of duty – that the treatment was such that no reasonable practitioner would have delivered that care.
• Causation – that the breach of duty caused or contributed to the injury, loss or damage suffered, and that the patient would not have suffered that loss without the breach.

Both these tests have to be established to prove negligence.

Before formal proceedings

In Scotland, there is no ‘clinical negligence pre-action protocol’ aimed at resolving claims without formal court proceedings. However, MPS adopts a proactive approach to resolving claims by encouraging early disclosure of records and investigation of the allegations.

Legal proceedings

Fewer than 5% of claims go to a proof (a hearing on the facts and evidence). Even when legal proceedings are raised, most claims are either discontinued, or settled by mediation or negotiation.

It is unlikely that you will have to attend court and give evidence. However, some claims do progress to formal court proceedings, and occasionally continue to a proof.

Are there time limits for bringing a claim?

The first stage of court proceedings is that a summons is prepared and signetted (issued) in court. The basic time limit for raising proceedings is three years from the date of injury, or the date the patient knew they had suffered an injury.

However, this can be extended in some circumstances, for example if the patient was a child; was lacking capacity; or there was an interval before the patient realised, or could have been expected to know, that they had suffered the injury.

For example, a child brain damaged at birth could raise a claim as an adult against the doctor or other health workers involved in the birth. Alternatively, the parents could raise a claim. Therefore, in practice, there could be many years between the incident and claim.

The court process

Once court proceedings are raised, the pursuer has one year and a day to serve the summons. Your solicitor will enter appearance and defences are lodged within seven days. MPS will deal with all papers on your behalf. In the unlikely event that you receive court papers directly, send them on to us immediately and securely, alerting us by phone or email. In the rare cases which do go to trial, it typically takes 12-18 months from serving the summons to the proof taking place.

Minimising the risk

After a critical incident (serious untoward incident), the important thing for patients is to know what went wrong and why. An open explanation and sharing of information is important to restore trust and reduce the frustration and anger a patient will feel if they think they are being ignored. Such frustration can be a catalyst for litigation.

There are some steps you can take to ensure you have a strong defence to a claim:

• Always write legible and detailed notes. The medical notes are essential evidential documents, which can help to demonstrate that the standards of care were appropriate in all the circumstances. This is especially important as clinical negligence claims can be made years after the event, when your contact with the patient has ended. You may only have your notes to reconstruct details of what happened.
• Always keep in mind what your colleagues would do in a given situation. Of course, your clinical judgment is important, but departing from guidelines or policy without a clear and documented reason can leave you with a heavy burden of demonstrating that you took a reasonable course of action if something goes wrong.
• It is importance to act within the parameters sets down in the GMC’s Good Medical Practice (2013).
• If you are unsure of something, do not plough on regardless. You have a professional responsibility to recognise and work within the limits of your competence and experience, and a duty to seek the advice of a senior or more experienced colleague.
• If you seek a colleague’s advice, make sure this is documented in the records.

Further information

• www.scotcourts.gov.uk
• GMC, Good Medical Practice (2013)