Claim guide - Wales

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.

Breach of duty

It is well established in law in Wales 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. To be negligent the doctor must have acted in a way in which no reasonable doctor acting in the same circumstances would have acted (this is known as the ‘Bolam / Bolitho test’).

Causation

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

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

The standard of proof for establishing causation is “the balance of probability”, which requires the Claimant to demonstrate that the chance of something happening but for the alleged negligence was more than 50%.

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 is different for children and adults who lack mental capacity. For children, the three-year time period usually runs from the date of their 18th 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.

Indemnity arrangements

MDDUS members should seek the assistance of NHS Wales Shared Services Partnership about any negligence claim for compensation brought against them in relation to their clinical care of NHS patients.

MDDUS members may seek the assistance of MDDUS for any negligence claims in relation to their clinical care of other non-NHS patients. MDDUS provides assistance to members in accordance with the Member Guide and the Membership Information Sheets.

The information provided below is on the basis that MDDUS is involved in the legal process, but the same principles apply if the claim is being overseen by a different indemnifier or insurer.

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 of; and if so, what would have happened in the absence of any negligence.

To investigate and respond to a claim for negligence, MDDUS will also obtain its own expert evidence on breach of duty and causation 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.

The early stage of the claim

The Pre-Action Protocol for the Resolution of Clinical Disputes aims to resolve cases of alleged clinical negligence without the need for court proceedings. The Protocol sets out a clear process for disclosure of healthcare records and notification of a claim. The Claimant is required to send a Letter of Claim, which should include a summary of the facts, allegations of negligence, and provide details of the injuries suffered, and any other financial losses incurred. A Letter of Response must then be sent by the Defendant within four months. If this process does not result in resolution of the claim, then it is likely that formal court proceedings will be commenced. There may be penalties in costs for a Claimant who commences proceedings without first following the Pre-Action Protocol steps.

Court Hearings

Ultimately, even if court proceedings are commenced, most claims will still be resolved long before a hearing of evidence (known as a “Trial”) is required. If a Trial is necessary then factual and expert evidence will be given by both parties, following which a Judge (or in some limited circumstances, a jury) will reach a final decision on the case.

If a case proceeds to Trial, MDDUS will work closely with our members to ensure that they are prepared to give evidence and have a clear understanding of the litigation 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 both the level of pain and suffering (known as “general damages”) and the financial losses experienced by the Claimant (known as “special damages”).

Financial losses can be wide-ranging in nature, but typically include loss of potential earnings/pension, disadvantage on the labour market, the costs of remedial medical treatment and the costs of any 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 will 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.