1. It is unlikely that any doctor will go through his or her career without being threatened with a claim for medical negligence, particularly doctors practicing in high risk specialties such as general surgery or obstetrics and gynecology. Complications do occur, and many patients do not appreciate known complications could occur in the absence of negligence.  

 

Introduction- the pre-action protocol

 

2. The Judiciary has issued a pre-action protocol which the parties are obliged to follow when making a claim for damages for personal injury before any Court proceedings are issued. Medical negligence claims are covered by this protocol. The protocol is contained in Practice Direction 18.1, which came into effect in 2009. Such claims are also covered by detailed Rules of the High/District Court.

 

3. The Practice Direction requires parties to proposed proceedings to comply with specific procedures in the pre-action protocol before any Court proceedings are commenced. As a start, a proposed Plaintiff has to issue a Letter of claim, usually through his/her Solicitors - what should a doctor do when he receives a threatening letter from a firm of solicitors?

 

Step 1- Ensure the Letter of Claim complies with the pre-action protocol

 

4. Once a Letter of Claim is received, it is important to ensure that it contains specific information. The Practice Direction requires the proposed Plaintiff to follow a standard format, and give as much information and produce sufficient documents to enable the proposed defendant to give a Constructive Reply.

 

5. Such information includes the circumstances of the alleged incident; the reasons why fault is alleged; and a description of the alleged injuries. In addition, the patient is required to provide documents relevant to issues of liability and quantum such as medical reports from treating doctors with details of the alleged injuries and treatment received; and receipts for medical expenses. If loss of earnings are claimed, the proposed Plaintiff is required to produce documents such as tax returns, wage slips showing average monthly income 12 months before the incident, and details of sick leave granted.  

 

6. The Letter Before Action must be sent to a doctor at least 4 months before proceedings are commenced. Failure to send such a letter may result in costs consequences for a claimant, or a stay in proceedings.

 

7. The exception to the 4 months rule is, e.g. if limitation is approaching and the end of the relevant limitation period falls within the 4 months. In such circumstances, proceedings should be commenced, but the proposed Plaintiff will nonetheless be expected to comply with the spirit of the requirements of the pre-action protocol above.

 

Step 2 – Preparing a Constructive Reply

 

8. If the Letter of Claim does not comply with the above requirements, a reply should be sent, pointing out that the Letter of Claim does not comply with Practice Direction and request the missing information including those in paragraph 12 below.

 

9. If the Letter of Claim complies with the above requirements, the proposed Defendant has one month to prepare what is known as a Constructive Reply.

 

10. There is limited guidance in the Practice Direction as to what a Constructive Reply should contain other than that a simple acknowledgment of the Letter of Claim is not sufficient, and if a Constructive Reply is not forthcoming within one month, a Plaintiff is entitled to commence proceedings immediately.

 

11. Despite limited guidance, a Constructive Reply should address the circumstances in the Letter of Claim and point out any factual discrepancies; and address the particulars of alleged negligence without admission of liability.

 

12. In appropriate circumstances, a request for an expert report on liability and causation in support of their claim should be made. A proposed Plaintiff will not be allowed to proceed with a civil claim for medical negligence unless s/he has obtained a report from a suitable expert that a doctor's treatment has fallen below the standard expected of a reasonably competent practitioner in the relevant specialty (i.e. there was a breach of professional duty of care to the patient and which has resulted in harm).

 

13. If proceedings are subsequently instigated and the Plaintiff fails to obtain such a report, a Defendant may obtain a court order for the Plaintiff to produce one, and have an action struck out in the absence of a supportive expert report.

 

Step 3- Investigation

 

14. Once a Constructive Reply is received, the Practice Direction requires the parties, over the next 3 months, to communicate constructively and provide mutual disclosure of information and documents with respect to issues of liability and quantum as are reasonably required for attempting to settle the claim in whole or in part, instructing medical expert(s) and / or arranging expert medical examination.

 

15. If following investigation and it is believed that a mistake has been made, a doctor may wish to resolve the complaint without going through the formal route of Court proceedings. The Practice Direction requires the parties to explore settlement before proceedings are commenced by making bona fide attempts to engage in settlement negotiations. If such negotiations do not result in any settlement after a reasonable time, the parties should proceed to explore alternative dispute resolution, such as a formal mediation.

 

16. In addition to the above, a doctor may consider making an apology in appropriate circumstances to avoid escalation of the complaint to other bodies such as the Medical Council.

 

Other points to note

 

17. Letters of Claim may be anticipated if a doctor has previously received a reqeust for medical records or a medical report, particularly if the request has been made by the Legal Aid Department, who will investigate the merits of a complaint or potential claim before granting legal aid.

 

18. A doctor receiving a Letter of Claim should notify his professional indemnity provider as soon as possible and seek advice from a solicitor immediately. The solicitor should be provided with the patient's medical records. Further, the doctor should prepare a medical report setting out the details of management for internal use. The medical report will be covered by legal professional privilege and will not be disclosed to third parties.

 

 

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