Claim guide - Isle of Man

What is a claim?

A clinical negligence claim is a legal action for financial compensation arising from harm or loss suffered by a patient as the result of allegedly substandard medical care. For a negligence claim to succeed, the Claimant must prove the following three elements: 

1. There is a duty of care owed by the clinician to the patient
2. The duty of care has been breached (in terms of the test outlined below) and
3. The breach of duty has caused harm or loss to the patient (and the harm / loss was reasonably foreseeable). This is referred to as ‘causation’.

In most cases of clinical negligence, the first requirement is easily met as all clinicians owe a duty of care to their patients. The second and third requirements are those which usually require more detailed investigation and analysis.

The standard of proof in these claims is “on the balance of probability”, or in other words the chance that something happened is more than 50%.

Breach of duty

It is well established in law that a clinician is not negligent if they have acted in accordance with the practice of a reasonable, responsible and logical body of professional opinion at the relevant time.

Causation

Causation considers whether the breach of duty caused (or materially contributed to) the harm or loss complained about.

It is sometimes the case, even where breach of duty can be established, that causation does not follow because the Claimant has either not suffered any loss or would have experienced the same outcome in any event even if there had been no negligence. In this situation a Claimant cannot succeed with their claim, because the causation element is not satisfied.

Time limits

There are strict time limits within which a patient must commence a claim for clinical negligence. If these time limits are not met, the right to bring a claim will potentially be lost. In certain circumstances, the court may allow a claim to proceed even though the time limit has passed, if it is considered just and equitable to do so.

The time limit is usually three years from the date of the alleged negligence taking place, or three years from the date on which the patient first became aware (or ought reasonably to have been aware) that they had suffered harm or a loss, which may have been connected to the medical care provided (this is known as “the date of knowledge”).

The time limit may be different for children and adults who lack mental capacity.

For children, the three-year time period usually runs from the date of their 18^th birthday. For individuals that lack mental capacity, there is no time limit at all.

In cases where the alleged negligence has caused death, the three years usually runs from the date of death.

Investigation of a claim

To bring an action for clinical negligence, a Claimant should obtain independent expert evidence from a clinician of the same specialism as the Defendant, commenting on the standard of care provided. They should also seek independent expert evidence on causation, to determine whether the care provided caused the harm or loss complained about, and if so, what would have happened in the absence of any negligence.

To investigate and respond to a claim for negligence in which MDDUS is assisting, MDDUS will obtain our own expert evidence to help establish whether a defence to the claim is available.

Often the clinician involved will have no knowledge of the fact that a claim is to be made until some years after the event. In this situation, it can be difficult to remember the precise details of the relevant consultations. A clinician subject to a claim may therefore have to rely heavily on the clinical records made at the time, as well as recounting their usual practice in such circumstances. This underlines the importance of accurate, contemporaneous record keeping.

Procedure

There are strict timescales when dealing with claims and it is important to alert MDDUS to any correspondence intimating a claim as soon as you receive it.

Claims are usually intimated well in advance of formal court proceedings to allow the parties adequate time for investigation and to explore the possibility of reaching an agreed outcome, without recourse to the court system. The investigation of a claim for negligence can therefore take several years.

Hearings

Ultimately, even if court proceedings require to be raised, most claims will still be abandoned or settled long before a hearing of evidence is required. If such a resolution is not achievable, a formal hearing known as a trial will be held. Civil claims in the Isle of Man are dealt with by the Isle of Man High Court and are usually heard in the first instance by a single deemster (judge) sitting in the high court who will reach a decision on the case.

If such a hearing is required, MDDUS will work closely with our members to ensure that they are prepared to give evidence and have a clear understanding of the claims process.

Compensation

Compensation in a clinical negligence case is intended to return the Claimant, as far as possible, to the position they would have been in if the negligence had not occurred. The amount of compensation can be agreed by the parties or fixed by the court and will reflect the level of pain and suffering, the type of injury (more serious injuries attract greater awards) and financial losses which include loss of potential earnings/pension, disadvantage on the labour market, the cost of any necessary remedial treatment and payments needed for extra care and assistance.

Once MDDUS has obtained the necessary expert evidence on breach of duty and causation and any further evidence necessary to quantify the claim, we would be able to assess the merits of the case and advise members further in relation to the prospects of a successful defence or, where appropriate, parameters for an out of court settlement.