Lifecycle of clinical negligence claim in general practice frequently asked questions

You should notify us as soon as you receive a letter of notification of a claim or a request for medical records from solicitors acting for a claimant. This is done via the claims reporting line or our website General Practice Indemnity. In some cases you may simply be sent a Letter of Claim or formal court proceedings. Again you should notify us without delay.

It is very important that you provide us or your legal representative with your full comments regarding the care that you delivered. We recommend that when you receive notice of a potential claim you write down your recollection of the treatment that you provided as this will be used to prepare your witness statement. Often these claims can take some time to resolve and recollections can fade, which is why preparing early and clear comments can be helpful. The comments will be sent to any expert instructed on your behalf. This recollection should be kept separate from the patient’s notes or any complaint file. As they are prepared for the purposes of a legal claim, your comments will be “legally privileged”, which means that they will not be disclosable to anyone other than your own advisers.

We may appoint an external solicitor from our legal panel to represent you in a claim. That solicitor can represent you and any co-defendants, as any disputes regarding liability between two different NHS defendants who are both indemnified by NHS Resolution will be dealt with by us. Your solicitor’s role, in addition to supporting you, is to investigate the claim and provide this information to us who will consider any apportionment between defendants.

The expert instructed to provide an opinion in your case will be an expert in the relevant area of medicine. The expert’s duty is to give objective, impartial advice to the court. If you disagree with an expert’s view, it is important to discuss this with us or your legal representative. However, it is unusual for an alternative expert to be instructed because of disagreement, as this is termed ‘expert shopping’, which is the practice of switching experts because a first report does not support the case of the instructing party. This practice is discouraged by the court. If there were significant concerns regarding an expert’s competencies or the reasonableness of their opinion, instructing an alternative expert may be considered.

Any relevant clinical guidelines that you were acting in accordance with can be referred to in your defence to a claim. However, guidelines are a practical tool to be used in conjunction with clinical judgement. Acting in accordance with a guideline or local policy does not necessarily mean that the court will conclude that the treatment that you provided was reasonable. The usual test will still apply, which is whether you acted in accordance with a responsible and logical body of expert opinion. In addition to looking at the guidelines themselves a court will review your notes explaining the application of those guidelines.

If the case is not resolved in the pre-litigation phase, the claimant may decide to enter into litigation. In order to do this the claimant will need to issue a claim form and this will be served with Particulars of Claim. This is a formal court document setting out the claimant’s case and the facts relied upon. These must be prepared when court proceedings are issued and the defendant will have the opportunity to prepare a formal defence to the allegations in the Particulars of Claim. These documents are the basis for each party’s case and will be referred to as the case progresses.

A CCMC is a legal acronym standing for Costs and Case Management Conference. This is a hearing between the parties to the claim and a judge, at which a timetable of steps (referred to as ‘Directions’ in the court) to be taken by the parties before trial, is set. Your attendance at this and other preliminary court hearings is not necessary as your legal team will deal with these steps. Only if the matter went to an actual trial would you be called to give evidence as a witness of fact alongside the experts supporting you. Very few cases reach trial. Your legal team will give you notice well in advance of any hearing where attendance is necessary.

A case conference is an informal meeting with your legal team, usually comprising of your solicitor, a barrister, experts and a NHS Resolution representative. The purpose of the meeting is to discuss the case, assess the evidence and set a strategy. It is also your opportunity to ask any questions that you may have. These meetings can take place in person or virtually. No one from the claimant’s legal team can attend.

Dispute resolution is a process of resolving a claim or dispute between parties.  Resolution of the claim without the need for court proceedings and/or trial will be considered at every stage. In cases where court proceedings have been issued, the court will order the parties to actively consider alternate means (i.e other than trial) of resolving the dispute at this stage. Dispute resolution can take various forms but the most common in clinical negligence are:

• Negotiation – This involves the parties corresponding or meeting with legal representation to discuss the issues and try and resolve the dispute.
• Mediation – This is where the parties of a dispute come together in one place with an independent person- the mediator- present who will work between the parties to help secure a resolution of the dispute, or to narrow the issues between the parties.
• Early Neutral Evaluation – An independent person, usually a barrister or retired judge provides an opinion on the issues in the case. Their opinion is non-binding but provides an unbiased evaluation of the parties’ positions and guidance as to the likely outcome.

Evidence is reviewed as the case continues and at each stage of information gathering your defence team will consider whether there is enough information to make a decision on the case strategy. In some cases, an early assessment of witness and expert evidence will indicate an admission is necessary or a risk-based settlement without any admission should be made. You will always be consulted before any decision is taken.

Where an admission is to be made, the NHS recommends that an apology is made as soon as possible. We will never withdraw indemnity because a party has apologised in respect of care delivered or an untoward outcome that a patient has experienced.

Very few clinical negligence claims reach trial. However, it is not always possible to predict which cases will go to trial. Every case will be assessed regularly through the life of the claim to evaluate the prospects of success at trial. Your legal team will regularly update you on the progress of the case and the likelihood of a trial.

If your case did reach trial, the judge would look at the contemporaneous notes that you made at the time of treating the patient. The judge would also read your witness statement, which would be prepared with the assistance of your solicitor. In addition, the judge would also hear your evidence in person at the trial. Your statement and notes would be made available to you to look at in the trial.

The duty of candour applies to every health and social care provider and requires you to be open and honest with patients and people in your care when something goes wrong with their treatment. The duty requires you to tell a patient when something has gone wrong, to apologise and to explain the possible short and long-term effects of what has happened.

For more information on duty of candour please see our short animation.

In order for the GMC to be notified the patient or another interested party would need to make a separate complaint to the GMC. The GMC will investigate cases where there is significant concern about the safety of patients or others, or where there are grounds to suspect a doctor’s fitness to practise is impaired. This is separate from clinical negligence proceedings where the test of liability is reliant on whether you acted in accordance with a responsible and logical body of expert opinion.

Removing a patient may lead to criticism by the GMC and the Ombudsman. You should only end your doctor-patient relationship where there has been an irrevocable breakdown of trust. The decision to remove a patient should only be made after careful consideration and you must continue to care for the patient until alternative arrangements are in place for their treatment. For more information on this issue, we recommend visiting: Removing patients from your GP practice list (bma.org.uk).