A successful claim in a clinical negligence case will require the claimant to prove the key issues of:
- Duty (of the clinician or other health professional or organisation)
- Breach of that duty
- Damage suffered
- Causation (ie, did the alleged breach of duty cause the damage, or loss, complained of).
Claimants are also required to adduce evidence in order to convince the court that, on the balance of probabilities, the defendant in question is liable.
It can often be the case that, in defending such claims, we find the evidence is incomplete or absent. It therefore becomes imperative that we, as defence solicitors, identify the opportunities that attend the case to take a robust stance in order to protect the defence position.
Given the litigious climate, crippling claimants’ costs (which can often exceed the value of the claim), and the media attention given to such cases that succeed, it might be thought that any claim is bound to result in a financial settlement. While settlements are often confidential and without admission of liability, the fact that inappropriate air time is given to the “wins” still rankles. We understand this, and that for every defendant and especially the individual clinicians, each claim is a stressful and upsetting experience calling into question their professionalism. Consequently we analyse every case in detail on its own merits in order to equip our clients to rebut claims which lack credibility. We hope that the following information reassures and informs those who find themselves involved in such cases about the approach we take at each stage of the claim.
The first indication of an impending claim is often an informal face to face encounter. Alternatively, the patient might channel a complaint through the clinic’s formal complaints procedure. Clinicians and care organisations whose insurers use us as their panel lawyers can call us for informal guidance at this stage. We can advise on how to handle the patient’s query tactfully but robustly where necessary, on how to enter into discussions with the patient so that a claim does not result, any concerns are dealt with effectively and the patient is clear as to what actually happened and why. All too often, claims are made because the clinician and/or clinic do not examine all the available options in terms of explaining and resolving the issues at this crucial first point of contact, or fail to communicate their position effectively. At this, and every other stage in a potential claim, we are here to guide them.
The preliminary notice of claim
If a case is not resolved at the complaints stage or (as often happens) a patient fails to pursue concerns through the complaint channels and enlists the services of “no win no fee” claimant solicitors, a clinician/care provider will subsequently receive a preliminary notice of claim (essentially a document warning of the probable content of the claim, and seeking disclosure of the relevant medical records). When we are instructed at this point, we always look carefully at the medical records and start to interview the relevant staff and managers about the events under scrutiny, the care/after-care offered, and the probable allegations. Early action at this point might include writing a robust letter informing the Claimant that the claim is misguided and will be defended. Sometimes it is too early for much correspondence as the claimant is unlikely to have formulated the claim at this stage. However, where the claimant has indicated the central components of the claim and we identify immediate and obvious errors of fact - a strongly worded letter supported by relevant medical articles and/or case law can be sent to close down the claim there and then.
The letter of claim
Under the pre action protocol for clinical negligence disputes (“the Protocol”), the parties are obliged to identify and agree the issues which could later be the subject of formal court proceedings. One of the reasons for the Protocol is to weed out claims which can be settled or withdrawn before both parties incur significant costs and proceed to waste court time. A thorough analysis of the letter of claim is therefore crucial. We look carefully at whether it sets out a cogent case of clinical negligence or is, perhaps, an attempt to channel subjective dissatisfaction with the outcome into an unsubstantiated claim against the clinician or care provider. Where be believe the latter to be the case, we will advise writing to the claimant requesting withdrawal of the claim.
Key points to watch include: 1) has expert evidence been obtained and disclosed? 2) have any key documents referred to been provided? 3) is the claimant pursuing the correct party, or, might the real responsibility lie elsewhere? Whilst we always try to adopt a collaborative and co-operative approach with other health professionals and care providers and their insurers, it is vitally important that we protect our client’s position at this point and establish any areas of shared accountability.
Where we consider a claim is dubious, we recommend this is conveyed clearly to the claimant and, in conjunction with a robust letter of response, we:
- Take statements
Although witness statements are not usually obtained until formal court proceedings are served, undertaking this work early on cases where we believe the claim is spurious has advantages. We ensure that we have a thorough, cogent account from the staff involved that can be sent to the claimant to encourage them to withdraw their claim. This approach works best where we can obtain supportive statements at this early stage from other clinicians or hospital staff who can corroborate the facts and/or disprove the claimant’s account. Frequently in our experience, the claimant misrepresents the factsand it is therefore of utmost importance that the truth is established with supporting evidence.
- Obtain evidence from expert witnesses
This is a crucial step. Where a claimant appears to have dubious expert opinion, instructing an independent expert at the pre-action stage can support the early views we come tothat the case should be robustly defended. Once we have obtained supportive expert evidence, rather than wasting time and money allowing the case to progress to the next stage, we will often serve supportive excerpts from the report either within the formal letter of reply or alongside it. Occasionally we will disclose the whole report.
- Increasingly we have asked that the medical experts meet at the early pre-action stage
This suggestion is sometimes met with reluctance by claimants’ solicitors who might be ill prepared for such early and active engagement. We remind those solicitors that we can refer the court to their failure to co-operate. In other words, if a claimant fails to agree to a meeting, and the case progresses, the claimant could face cost penalties for a refusal to comply with the co-operative spirit of the Civil Procedure Rules (CPR) and the court’s increased emphasis on alternative dispute resolution. Where claimants’ solicitors agree to an expert meeting we have found that, by drawing up a formal agenda, the experts quickly identify the salient issues and, where we have supportive expert evidence, the claim often falls at this hurdle with the claimant withdrawing it in order to avoid a more expensive loss at trial. Whilst it can be time consuming to set out all the relevant questions to the experts, there is no doubt that under the new (ie post April “Jackson” 2013) regime, it can ultimately save a lot of time and cost and can effectively dispose of the claim.
- Identify other parties
a. Where appropriate at this stage we ask the claimant to direct the claim to another party. Careful analysis of the papers, alongside taking statements from witnesses and discussions with an expert can help to identify other parties who may in fact, be liable and thereby extricate inappropriate parties.
- Where proceedings have been issued
Where proceedings have been issued but not yet served, claimants’ solicitors often forget that under CPR 38.6 (1) the claimant must pay the defendant’s costs if the claimant discontinues the claim. Consequently, if the claimant discontinues the claim after receipt of the letter of reply and the documents listed above, the defendant clinician is entitled to recover defence costs. We generally advocate pursuing the claimant for these costs with a view to setting examples for the future.
"Frontloading" evidence is a useful method of identifying claims lacking credibility or substance before they go to court. Whilst it can initially seem an expensive and intensive approach, it is, in fact, a more time- and cost-effective approach in the long run - rebutting claims which lack merit, and avoiding far higher costs and longer delays further down the line. It has the added bonus of offering the possibility of recovering costs if a claim has been issued. For this to happen, we need the active co-operation of the parties, and we always recommend that they consult us as soon as possible and provide us with all the relevant documents at the earliest opportunity.