MPS understands how upsetting and distressing it can be for any medical professional to receive a letter from an attorney indicating that a patient is unhappy with their care, and that they are considering bringing a claim.
MPS has a team of dedicated medicolegal advisers, claims managers and panel lawyers who are here to help, should you receive such a letter. In this article we offer some practical advice about the steps to take if this happens to you.
On receiving an attorney’s letter indicating that a claim for compensation is contemplated, or where legal proceedings have been served upon you, the first thing to do is to contact the MPS helpline on +44 113 243 6436 or at medical.wi@mps.org.uk. You should do this as soon as possible so that our claims team can help you. This ensures MPS is notified of the claim, or potential claim, from the outset and where appropriate enables MPS to take immediate steps to instruct an MPS panel lawyer (“Panel”) to act on your behalf on instructions from MPS.
You will most likely be asked to send in a copy of the lawyer’s letter and/or court papers so we can better understand the nature of the claim. A file will then be opened. Once it is confirmed that you are entitled to MPS assistance in relation to the potential claim in accordance with the MPS Memorandum and Articles of Association, a medicolegal adviser, or a medicolegal adviser and a claims manager (the “file handler/s”), will be appointed to provide support and professional reassurance; they will be able to guide you through the claims process.
The file handler will be responsible for instructing Panel to act on your behalf, where required, and will liaise with Panel in order to provide MPS input and instructions in conjunction with you. The only exception to this situation is where you have been served with court papers and the time for responding or acknowledging service of those papers is very limited – in which case you should make contact directly with Panel in your jurisdiction (see the MPS website for up-to-date details).
In these circumstances Panel will contact MPS to request authority to assist on your behalf and to confirm instructions to act on your behalf before doing so. We would ask that in these circumstances you also make contact with MPS to notify us that you have taken this step, so we can liaise with Panel.
Once a file has been opened and authority to assist confirmed, it is likely we will ask you to provide a copy set of your notes for the patient, together with a report detailing your involvement with the patient’s care and, where required, a response to the allegations being made. Where a patient’s attorney has sought disclosure of their client’s medical records, then Panel will be able to advise you on this.
As a general rule before copy records are disclosed, they must be checked by you to ensure that disclosure of the notes will not harm the physical or mental health of the patient, and that the records do not contain any information relating to identifiable third parties (this would not include healthcare professionals who have been involved in the patient’s care).
If either exception applies then these records should be redacted (references to third parties removed). In some instances, where it would help to better understand matters, the file handler may ask Panel to arrange a telephone conference with you, the panel lawyer instructed on your behalf and the file handler/s, so your instructions can be taken and to give you an opportunity to ask any questions you may have about the claims/litigation process.
As a potential defendant to a claim, you have a right to what is known as legal professional privilege or litigation privilege (‘privilege’). This privilege ensures that all correspondence that passes between you and your attorney, including reports and statements, is protected if its purpose is to enable you to seek legal advice. The patient and their legal advisers are not entitled to see these documents. It is important to remember that as such, documents are not patient records and they should not be stored with the patient’s medical records.
The concept of legal professional privilege or litigation privilege enables you to have full and frank discussions with Panel instructed on your behalf about the claim, safe in the knowledge that what is shared between you cannot be accessed by the patient or his or her adviser. It is also important to keep in mind that privilege can be accidentally waived, for example, by placing MPS correspondence within the patient records and sending it to the patient.
It is always best not to disclose any statement to the patient without seeking MPS advice. You are also entitled to send the patient’s records to MPS (without anonymisation), for the purpose of obtaining legal advice.
The patient was owed a duty of care by the treating clinician – in clinical negligence cases this duty is usually implied and rarely open to challenge.
There has been a breach in the duty of care – in essence that the care provided would not be supported by a competent body of general medical opinion in the clinical specialty in which you practise.
That the breach of duty has caused or contributed to the injury, loss or damage suffered and was reasonably foreseeable (what lawyers refer to as causation). To establish liability it is likely the claimant will need to obtain independent expert medical opinion on both breach of duty and causation. As an example, say, in a matter involving an alleged delayed diagnosis of a scaphoid fracture by a GP, this would entail an opinion from a GP expert to comment on the GP management and a report from an orthopaedic expert to comment on causation.
In investigating the claim, MPS too will involve independent medical experts in assessing the merits of the case. If a claim is successful, a claimant will generally be awarded financial compensation for the harm suffered as a consequence of the negligence.
If a claim is pursued and it has not been possible to resolve issues without the need for legal proceedings, then court papers setting out the formal allegations will be served. Panel, in conjunction with you and the file handler, will consider how best to investigate and respond to the claim: what expert input will be required and the procedural steps to be taken.
Whilst it is stressful and daunting if legal proceedings are issued, it is important to note that only a very small percentage of issued cases actually go to trial. Where expert evidence is obtained and is supportive of the management, then the matter can be defended; the MPS claims team will then review and evaluate the strength of the case with you as it progresses through the courts before making any commitment to defend a case to trial.
Sometimes, however, expert evidence indicates that a doctor could be vulnerable to criticism and in these circumstances the panel attorney instructed on your behalf, along with the file handler, will discuss the next steps with you. It may be agreed that the best possible result would be to settle the claim and bring it to a conclusion at an early stage.
We will work with you at each stage so as to be able to advise how best to conclude the claim, either by settlement, persuading the claimant to discontinue their claim or, where appropriate, to defend to trial. MPS is committed to your professional welfare – we will do everything we can to help you resolve your case.