Claims

What is a clinical negligence claim?

Clinical negligence claims arise when a medical practitioner, such as doctor, nurse, midwife, breaches their duty of care to a patient, who is then injured as a result.

Therefore a claim is a formal request for compensation as a result of medical negligence. It should be made in writing and can come directly from the patient or family member, or from their lawyer or representative. 

A claim can be served within 3-years of the incident or realisation of injury or harm, which is known as the limitation period. For a claim to be served outside this period, there must be a subsequent injury which is directly related to the alleged negligence and a causal link can be established.

How does the Legal Department deal with Clinical Claims? 

There are many different stages of dealing with clinical negligence claims. Most claims are dealt with under 'clinical negligence pre-action protocol'; which aims to resolve claims without going to formal court proceedings in order to resolve matters efficiently without the time and associated costs. 

The Law

For a claim in negligence to succeed, it is necessary to establish;

• Firstly, that a duty of care was owed by the defendant to the claimant;
• Secondly, that the duty has been breached;
• Thirdly, the claimant's loss was caused by the breach of duty (ie causation); and 
• Finally, the loss fell within the scope of the defendant's duty and was a foreseeable consequence of the breach.

What is the Duty of Care? 

Duty of care is defined as a duty to provide care at a level reasonably expected of any competent doctor, nurse, midwife, surgeon, etc. 

This includes: 

• Working within the limits of professional practice; 
• Keeping professional knowledge and skills up to date; 
• Keeping clear, accurate and legible records; 
• Consulting and taking advice from colleagues where necessary; 
• Referring the patient to another practitioner where this is in their best interests.

Breach of the Duty of Care: The Bolam Test 

Under the case of Bolam v Friern Hosptial Management Committee [1957] 1 WLR 582, it was held that in order to determine breach of duty, the claimant must show that the medical practitioner has followed a course of action which is not supported by any reasonable body of medical opinion. 

This will include: 

• Judging a medical practitioner in accordance with the standard expected from other reasonably competent practitioners of the same rank in the same discipline; and 
• Judging a medical practitioner in accordance with the reasonable body of opinion which existed at the time of the alleged negligent act. 

Causation: The ‘but for’ test

In a clinical negligence claim, the claimant will argue that as a result of the negligent treatment by the defendant, they have suffered an unexpected injury or condition. 

They will have to satisfy that on the balance of probabilities, but for the defendant's breach of duty, the claimant would not have suffered the injury. It does not have to be the sole cause of injury, but must have made a material contribution. 

NHS Resolution 

When the Legal Department receive a clinical claim, we refer it to our insurers NHS Resolution under the Clinical Negligence Scheme for Trusts (CNST). This scheme provides an indemnity scheme for the NHS in England and aims to resolve claims for compensation.

We work closely with the case handlers as NHSR and liaise with them throughout all stages of the claim. They also provide us with feedback and learning after the claims closes. 

Hill Dickinson 

Hill Dickinson are NHS Resolution's instructed clinical negligence solicitors. 

Hill Dickinson will be instructed by NHSR to handle defence work on their behalf. 

This will include drafting reports, Letters of Responses, instructing experts etc. and generally assisting with investigating the claim. 

When dealing with a clinical negligence claim, your in-house Legal Services Team will reach out to any clinicians involved throughout the claimant's care and the Clinical Director for that speciality. This commences the Trust's internal investigation into the allegations, in order to establish a position on liability. 

Your comments will ‘bring to life’ the medical records. You need to bear in mind that what may be second nature to you in your professional work will need to be explained, so that it can be understood by someone without medical training. Being able to provide evidence starts with good record-keeping practice which accords with your professional code of conduct.

Success in defending claims depends on what happened, why and whether it accorded with responsible clinical practice. You may be asked to respond to the allegations made by the claimant as well as to consider what you would have done in a hypothetical situation.

Your evidence will need to explain:

• what you did;

• the reasoning behind any decisions you made;

• what your entries in the medical records say; and

• why you may have departed from guidelines or usual practice. 

It may be helpful to follow the below flow-diagram when providing your comments on allegations: 

1.Pre-Action Disclosure Request 

Here the claim is not formal. Claimant's solicitors at this stage will be gathering documents and requesting medical records in order to ascertain whether they have a case to answer. Our Legal Clerical Officers will liaise with Radiology (if needed) and provide solicitors will disclosure of medical records. 

2. Letter of Notification 

At this stage, the claim is still not yet formal. The claimant's solicitors are still preparing their case and may take this opportunity to notify us of any further information regarding the allegations or request further documentary evidence. 

3. Letter of Claim 

If the solicitors feel they have a case to be answered and wish to bring a claim against the Trust, they must serve a 'Letter of Claim'. This details their version of events, the alleged injury, details of the alleged breach, and any compensation sought.  This will be based on their own independent medical expert evidence.  

4. Refer the claim to NHS Resolution 

At this stage, the Legal Department will refer the claim to our insurers, NHS Resolution. If NHSR feel this requires further expertise, they will instruct our panel firm, Hill Dickinson, to proceed in dealing with the claim on behalf of the Trust. 

5.  Internal comments from Trust clinicians and gather important documents. 

Once the Legal Department have referred the claim, we will get in touch with the Clinical Leads for the concerning specialty and/or any senior clinicians involved in the patient's care. This is to support our investigation into the claim and to gather their views on the allegations. We will also check whether there are any related incidents/complaints on Datix.

6. Instruct Medico-Legal Expert to provide an expert report 

Once Hill Dickinson have been instructed, it is common practice to instruct an expert in that field to provide a medico-legal report on breach of duty and causation. The Trust has discretion in instructing experts therefore the Legal Department will always aim to send you the intended expert's CV for your approval. Once the report is complete, we will feed this back for clinician review and comments. 

7. Letter of Response 

Once the Trust's position on liability has been established (ie whether to deny/admit the claim in part or full), a Letter of Response will be prepared responding to each allegation of negligence and include a quantification of estimated damages. The solicitors will be served with the LOR and given the opportunity to achieve out of court settlement at the earliest opportunity. Most clinical claims are resolved at this stage, and very few will proceed further. 

8. Legal Proceedings 

On receipt of the Letter of Response, if the claimant's solicitors feel the case cannot be resolved or are not satisfied with the response, they may wish to begin legal proceedings. They will serve a Particulars of Claim which will outline points of contention or any additional allegations.  

9. Witness statements and being a witness

On receipt, we will begin to gather witness statements and draft a formal response. 

10. Experts 

Hill Dickinson will instruct relevant independent expert witnesses to provide their opinion on the claim and comment on breach of duty, causation or both. 

11. Conference

A conference will be held to discuss the current position. This is a meeting with barristers, solicitors, experts, witnesses and clinicians involved. The purpose is usually to assess the strength of the claim and test evidence.

12. Trial

Very few claims actually end up going to trial (around 2%). The factual witnesses (which will include clinicians involved and the claimant) will give evidence and be asked questions by the barristers for each side. The experts will also give evidence at the trial. The trial will be heard and decided by a judge without a jury.

How long does the claims process take? 

Dependant on the negligence alleged and the injury sustained, the average clinical claim takes 2 to 3 years. The shortest claims will have a clear selection of evidence linking the harm or injury to negligence. Where the defendant responds promptly to a claim and admits their negligence, a settlement out of court could be reached within just a few months.

When the injuries or harm are more serious and has life-changing consequences, the claim usually takes a little longer. In these cases, the suggested damages payments are also much higher. 

Employer's liability claims deal with employees who have suffered an injury at work as a result of alleged negligence in an employer's duty of care.

These can range from slip-trips, needlestick injuries, manual handling, bullying and stress claims.

The Employer's Common Law Duty of Care 

An employer is under a duty to take reasonable care for each and every employee's health and safety in the course of their employment. An employer must exercise due care and skill in four particular areas: 

1. Competent Staff;
2. Adequate plant and equipment;
3. Providing a safe system of work; and 
4. A safe premises. 

The Requirement of ‘Reasonableness’ 

The duty on an employer is not absolute but merely a duty to take reasonable care. Therefore the standard remains very high, but will vary in different circumstances. 

It is always vital that the employer takes into account the likelihood and potential gravity of an injury, and consider any reasonable measures necessary to prevent injury. 

An Employee's Responsibilities 

An employee also has a duty and responsibility to promote their own safety and ensure a safe system of work. 

Some of the include: 

• To take reasonable care of your own health and safety
• To take reasonable care not to put other people (fellow employees and members of the public) at risk by your acts or omissions in the course of employment
• To co-operate with the employer and ensure you are adequately training and understand the Trust's health and safety policies
• Not to interfere with or misuse equipment which has been provided for your health, safety or welfare
• To report any injuries, strains or illnesses you suffer as a result of doing your job.

Public liability claims, also known as a personal injury claim, are compensation requests made by anyone who is injured from an accident which was caused by negligence. 

Duty of Care 

It concerns the overarching common duty of care owed by an occupier (the owner of the premises) to ensure that a lawful visitor is reasonably safe whilst using the premises. 

Types of Claims 

Public liability claims may range from:

• Slip, trip or fall;
• Falling objects;
• Sharp objects;
• Trip hazards;
• Food poisoning; or
• Any other type of injury which could’ve been preventable had the business owner/landowner done something differently. 

Ex-Gratia

Patients may submit an Ex-Gratia Claim Form seeking compensation for the loss/damage of their property. 

As per the Trust's Ex-Gratia Claims SOP, the Legal Department will investigate the loss/damage with staff members and formulate a response to the patient. 

It is important to note that an Ex-Gratia claim is a gesture of good will on behalf of the Trust and there is no legal obligation to provide compensation.

The Importance of Declaring Patient Property

When admitted to hospital, patients should be encouraged to give all valuables to family members. 

If patients wish to keep valuables in their own possession, patients must declare them to staff members. This includes cash, jewellery, dentures, hearing aids, clothing, walking sticks etc. 

If property is believed to have been stolen, patients should be encouraged to report the matter to the police and obtain a Crime Reference Number. 

Patients with Capacity 

On admission, patient who have capacity should sign a Trust Disclaimer which states that the Trust is not liable for property unless it has been handed to staff for safekeeping and an official declaration of valuables is made. 

Therefore property remains the responsibility of the patient throughout their time in hospital and the Trust is only liable for property where there is clear evidence of loss or damage at the hands of the Trust. 

Documentation

It is vital that all patient property is documented clearly in patient notes. 

This applies from the beginning to the end of the patient's journey, including any patient concerns. 

On admission, there is a ‘Cash and Valuables’ section which must be filled out accurately and signed by patients.