What if my patient decides to sue me?

01 Jul 2019

It’s a sobering thought that if you follow a career in medicine, the chances are that you may find yourself involved in court proceedings at some point during your professional life.

That involvement might come about in a number of ways.  For example, you may be asked to participate as an expert witness for one of the parties. This would be a matter of personal choice on your part.   However, choice aside, there is also a likelihood that at some point during your career you will be involved in the defence of court proceedings, either as a factual witness or as a defendant in relation to your own acts or omissions.

How do we know this? The available data, of which there is a great deal, tells us so. NHS Resolution (NHSR, formerly the NHS Litigation Authority) publishes its annual report and accounts, containing a wealth of information regarding the incidence of clinical claims. The latest report covers the year 2017/2018. Over the past three years, new hospital claims have held steady at a rate of just under 11,000 per year. These figures do not include claims involving general practitioners or private treatment.

Different medical specialities present greater inherent risks and consequently generate more claims. Within the hospital setting, the greatest incidence of claims (13%) is found in the field of emergency medicine, followed by orthopaedic surgery (12%), obstetrics (10%) and general surgery (9%).

According to the NHS Confederation there were 106,430 doctors working in hospitals and community healthcare services in March 2017 and more than twice that number of nurses and health visitors.  Allowing for variations across specialties, it is said that a doctor can expect to be involved in a claim roughly once every ten years on average.

As of  1 April 2019, NHS Resolution is also responsible for the new State backed GP Indemnity Scheme, but for now the majority of claims involving general practitioners will continue to be dealt with by medical defence organisations.

The majority of claims are valued at £50,000 or less, but there remain a significant number of much higher value claims, notably those involving serious birth injuries, which may be valued at £10 million or more.  The NHS spent approximately £2.2 billion on clinical claims in 2017/18. That figure is expected to rise to £3.2 billion in 2020/21.

Only around 30 percent of claims result in formal court proceedings being commenced and of that number barely 1 percent will end up at trial before a judge. However, that still leaves a significant number of claims being pursued through the courts, over 3,000 per year based on the current figures.

Even allowing for the fact that most claims do not end up at trial, there are various stages during the course of a claim where your input might be required. These include disclosure of documents, the provision of a witness statement and discussions with both legal advisers and independent expert witnesses. Years may elapse before a claim is made, particularly if the patient was a child, or is deemed to lack capacity. That being the case, it is of vital importance that the notes made in the medical record at the time are clear and comprehensive, as these will often form the only contemporaneous record of what actually took place and memories are likely to have faded.

The litigation process is often lengthy and of those practitioners that have been through it, few would claim to have enjoyed the experience. Nevertheless, many consider it to be a real eye-opener and report that it has had a positive impact on the way in which they intend to practise in the future.

If you do find yourself embroiled in the court process, don’t panic! Help, advice and support is available from your Trust, defence organisation or indemnifier and you should notify them as soon as you become aware of a possible claim. Depending on the nature of the claim and the stage it has reached, external lawyers may be appointed to investigate and lead the defence of the claim. Part of the lawyers’ job is to guide you through the legal process.

For more information about that legal process, take a look at BLM’s ‘What if?’ series of podcasts and accompanying materials, created by legal experts with years of experience in representing the interests of healthcare professionals before courts, inquests and professional regulators.

 

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Disclaimer: This document does not present a complete or comprehensive statement of the law, nor does it constitute legal advice. It is intended only to highlight issues that may be of interest to customers of BLM. Specialist legal advice should always be sought in any particular case.

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Greg McEwen

Greg McEwen

Partner,
London


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