A clinical negligence claim occurs when a member of the public makes an allegation of harm against a doctor. This can be due to poor care, failure to diagnose, late diagnosis, or administering the wrong treatment – but a large proportion of the claims occur due to poor communication between doctor and patient.
If a patient makes a claim against a doctor, and their employer – usually the NHS – is not dealing with it, they should contact their professional protection organisation. A successful claim has to prove negligence, and to do so, must prove that a breach of duty had causation. In other words, the doctor in question must be found to have administered unreasonable treatment that directly led to harm.
Resolving Before Court Proceedings
Before formal proceedings begin, the ‘clinical negligence pre-action protocol’ is enacted. This aims to quickly resolve matters without the burden of formal court proceedings wherever possible. The protocol has to be enacted in a short space of time, so the timescale must be strictly followed.
If a patient brings a claim against a doctor, they must send a letter of claim which highlights their grievance and their desired compensation. The doctor’s representatives then have four months to respond with a letter of response outlining
- their version of events,
- their reasoning,
- the content of their notes,
- any legal proceedings.
If copies of the patient’s records are requested, the doctor in question has 14 days to acknowledge the request, and 40 days to send copies of the records.
Even in the event of legal proceedings being initiated, the vast majority of claims are discontinued or settled before trial. However, some do eventually require a doctor to give evidence in court – usually 12-18 months from the time when court proceedings are first issued.
Court proceedings begin with the issuance of a claim form in court, almost always within three years from either the date of the injury, or the date on which the patient realised they had been injured. Some factors, such as the patient being a child or mentally unwell at the time of the incident, may extend this time frame. An example of this would be a patient launching a claim against the doctors involved in their own birth.
After an incident, the priority for a patient is to find out what went wrong, and why it happened. Openly explaining information to the patient is a good way to restore trust between a doctor and their patient. Failure to do this is often a main reason behind the move to litigation. The risk of a claim being successful can be reduced by
- writing legible and detailed notes, especially important when years have elapsed since the incident in question;
- recalling what colleagues would do in a similar situation, with an awareness of guidelines and policy; and
- recognising and working within the limits of competence and experience and seeking senior colleagues’ advice wherever necessary.