If you are faced with the difficult prospect of having a clinical negligence claim brought against you for treatment you have provided to a patient, the various steps that are involved in dealing with this can be quite daunting. You may have a clear view on the standard of treatment you provided to the patient and you may feel personally aggrieved that such allegations have been made. It may on the other hand be that you cannot actually remember the consultation with the patient at all; which is something we frequently see in these types of claims. That is where the detail contained in your contemporaneous clinical record of the consultation is crucial to evidence what treatment you provided and the advice you gave. That, with your own evidence either regarding what you can recall about the patient’s treatment, or what your standard practice would be in that situation, are key to respond to a claim.
The evidence gathering process in a clinical negligence claim is designed to ensure that a claim is only brought and pursued where it has sufficient merit to do so and that conversely, a claim is disputed or defended where there is a reasonable basis for that defence.
As clinical negligence claims are ultimately dealing with issues of ‘professional negligence’ i.e. advice or treatment from a qualified medical practitioner, it is not sufficient simply for a claimant to say that what happened was ‘negligent’; that has to be supported by evidence from an independent expert in the relevant discipline. So for example, if you are a General Practitioner, the claimant should obtain expert evidence from an expert General Practitioner to comment on the standard of care you provided and whether this fell below the relevant standard in law. In return, you as the defendant (i.e. the medical practitioner) should also obtain your own expert evidence from a General Practitioner expert to advise on whether the standard of care did fall below the acceptable standard that the claimant alleges.
As above, whilst your own factual evidence is also important, you will usually find that the claim fast becomes reliant upon the experts for each party and ultimately, whose expert evidence is stronger. Experts will usually provide an opinion on the standard of the medical treatment (breach of duty), whether the patient has suffered an avoidable harm as a result of any substandard treatment (causation) and finally the extent and nature of the harm suffered and prognosis for any injuries (condition and prognosis). Very frequently these experts are from separate disciplines and so there may be a number of experts involved in the claim for each party. Sometimes, an expert may be instructed jointly between the parties if they feel this would be beneficial or if the court orders for this to be done.
During the course of the claim, any expert reports that are obtained by your legal representative will be provided to you for your review and comment. This ensures that there is a fully collaborative approach to the claim and that any areas that are possibly misunderstood or misinterpreted by the expert, can be discussed.
If both parties consider that their experts are equally as persuasive in their arguments, and are confident with their evidence overall, the claim will usually proceed to a meeting of the experts of like discipline where they will discuss the issues that they agree on and those that they do not agree so that the issues can be narrowed as far as possible before a final trial. The experts would then also play a vital role in any trial that takes place and they would provide evidence at this to support their opinion.
After all of the required steps have been addressed and if the case reaches the trial stage, it will then be for the Judge who has heard the evidence during the trial to make the final judgment, in terms of which party’s evidence is preferred.
Experts therefore play a crucial role in a clinical negligence claim and it is important to get evidence from the correct experts as soon as possible, so that the case can be properly investigated on your behalf.
For more details on how evidence generally is dealt with in clinical negligence claims, please listen to our ‘What If?’ – Evidence podcast and our trial podcast for a useful insight into dealing with a trial.
This article was written by Rachel Barnes.