The MDU’s claim-handling team manage hundreds of claims each year arising from members’ work in independent hospitals or primary care. Common reasons for claims include allegations of failed or delayed diagnosis, medication errors, administrative errors, concerns about seeking consent, communication problems, and other treatment mishaps, such as surgical errors.
The number of claims notified to us by members has remained stable and only around 2% ever get to trial but this is little consolation for a doctor who receives a letter from a claimants’ solicitor. Doctors frequently feel angry and distressed and some knowledge of the way in which the claims process works may help them understand what to expect.
Clinical negligence is a failure to provide the standard of care to be expected of a doctor with similar training, skills and experience. To succeed, the claimant must establish that the doctor owed them a duty of care; that the doctor breached that duty, and that the patient suffered harm as a result.
Claims should be started within three years of the incident - 70% of claims notified to the MDU are in this group - or three years from when the patient becomes aware there are grounds for a claim. However, this time limit only applies to competent adult patients. For children, the three year limitation period only begins when they have reached 18 while there is no time limit for patients with a mental disorder or disability. Members with claims which are notified well over ten years after the incident have been assisted.
There are a number of different stages to the claims process itself and they differ within the UK. In England and Wales a pre-action protocol was introduced in 1999 to encourage the informal resolution of claims. If both sides fail to agree, the patient can still pursue the claim through the courts.
Details of the claimant’s case and damages claimed, known as particulars of the claim, must be sent with the claim form or served within 14 days. These must give details of the claimant’s allegations and a breakdown of the financial loss that is being claimed. The defence team then has 28 days to lodge a full defence. The case runs on a strict timetable imposed by the court, including exchange of witness statements and reports from impartial experts in the appropriate specialties to advise on the standard of care provided and whether, on the balance of probabilities, this affected the outcome.
Throughout the process, the claims team works with the doctor to achieve the best outcome. For example, we may invite them to meet with the barrister and solicitor to examine the claim in detail, test the available evidence and identify other evidence that may be needed. Our policy is to involve members in decisions about their claims and we will not settle any claim for the sake of expediency alone, although of course, it is not in anyone’s interests to try to defend the indefensible.
Two-thirds of claims notified to us by members do not result in a settlement but where a claimant is successful, compensation is paid for the harm they have suffered and the impact this has had on their life. The object is to restore patients to the position they would have been in had the negligence not occurred and may include general damages for pain, suffering and loss of amenity as well as special damages which are designed to meet the cost of care, loss of earnings and special equipment or adaptations in the home.
The cost of the average claim settled by the MDU has increased by about 10% per annum in recent years in terms of the level of compensation awarded and the legal costs have escalated to a greater degree. In fact, in over 40% of medical negligence claims settled by the MDU, claimants’ legal costs now exceed damages. We have repeatedly highlighted the problem of spiralling and disproportionate legal costs but we are optimistic that the recommendations in the Justice Jackson report into civil litigation costs, if implemented in full, will restore balance to the system.
Whether or not a claim is successful, we see at first hand how upsetting it can be for doctors to be accused of clinical negligence. For this reason, it is essential that doctors contact their defence organisation at the first sign of a claim.
Access an explanatory podcast on the issue (MDU members only).
