In this chapter of our Annual Insurance Review 2020, we look at the main developments in 2019 and expected issues in 2020 for medical malpractice.

Key developments in 2019

2019 saw Claimant solicitors seek to weaponise the GDPR in pursuit of medical malpractice claims. Almost all requests for medical records are now being framed as subject access requests, often also specifying that investigation documents should be included. This is a transparent attempt to seek information that will bolster their claim well in advance of the disclosure phase. Responses to such requests need to be carefully considered to ensure Insureds are complying with their legal obligations without prejudicing their position in any forthcoming claim. Requests that fall outside of the Claimant's personal data (such as internal policies) should be robustly denied.

Greater knowledge of consumer rights under the GDPR has led to a sharp increase in data breach claims against healthcare professionals and providers. Healthcare data is, by its very nature, sensitive and extremely personal and so Claimants will find it easy to argue that an unauthorised disclosure has caused them distress. In such cases the damages are unlikely to be high and so it is important any claims are disposed of efficiently to avoid costs on both sides becoming disproportionate.

The recent case of Andrea Brown v Commissioner of Police of the Metropolis has, however, brought welcome relief to Defendants in data breach claims. This was a mixed claim for both personal injury (psychiatric damage) and non-personal injury damages arising out of a data breach. The case provided judicial clarification for the first time that, where a claim for personal injury is unsuccessful, the Claimant is not entitled to Qualified One-way Costs Shifting protection in relation to the remainder of the claim; meaning the Defendant is entitled to seek its costs.

What to look out for in 2020

The issue of consent is one that has dominated the medical malpractice legal sphere over the last few years, with the 2015 case of Montgomery v Lanarkshire Health Board bringing the issue of informed consent to the fore. For medical practitioners, and their Insurers, allegations relating to consent (or the lack thereof) can be difficult to manage, and extremely difficult to defend (particularly if medical records are sparse).

Given this evolving and increasingly litigious topic, in 2020 we expect to see an increase in the use of visual and audio recordings of examinations and consultations, by both patients and clinicians. Perhaps this is of no surprise given the developments in other professions (including, for example, the use of cameras on police vests), and the recent case of Mustard v Flowers & Ors, where Master Davison opted to admit as evidence visual and audio recordings, which had been taken covertly by the Claimant when undergoing an expert examination.

But what does this mean for medical practitioners and their Insurers?

Well, firstly, whilst it may seem daunting, it’s our view that, if done in the correct manner, such recordings could in fact be extremely helpful to clinicians defending a claim based on consent. Currently, a consent claim generally has to be considered on the basis of relatively scant medical records, and the parties' recollection of events. If visual and audio evidence, which captures what the practitioner told the patient (word for word) was available, the position would become much clearer, much earlier on, meaning any consent claim could be managed accordingly.