Medical Defense Society Casebook – Dr D Cleared of Fault: The Defence That Ended a High-Value Claim Against a GP

What was needed to defend the claim?

Due to the complex medical issues involved, evidence was obtained from experts in 11 disciplines for the various parties. These included experts in General Practice, Neurosurgery, Neuroradiology, Urology and Pain Management. These experts were needed to provide an opinion not only on breach of duty and causation, but also on condition and prognosis and quantum (evidence required to ascertain the value of the Claimant’s case). Condition and prognosis was complicated, as the Claimant claimed to suffer from numerous medical problems as a result of his injury. His complex condition required the input of experts from numerous disciplines, all of whom had to examine him. Expert evidence is always needed to investigate and defend clinical negligence cases, but it is unusual to need expert evidence in so many distinct disciplines.

We worked with Dr D to prepare a comprehensive Defence, arguing that his actions and care of the Claimant had been reasonable in the circumstances (known as the Bolam test). This involved close collaboration between us, the GP expert and Dr D. Sadly, the process of investigating and defending a clinical negligence claim demands significant time and consideration by the defendant clinician, on top of their continuing day to day clinical commitments. Dr D’s cooperation and careful attention to the expert evidence, his own statements and our advice, were all vital to achieving a good outcome.

We also advised and set out grounds of defence about whether the alleged negligent treatment was causative of any of the Claimant’s purported symptoms and condition, based on the expert evidence we had obtained. The particular circumstances of this case raised a related question, which was whether the Claimant had been contributorily negligent? The Claimant did not wait to be seen in A&E prior to his alleged deterioration and subsequently failed to mention a fall at home to clinicians, which arguably had a detrimental impact on his condition. These issues all contributed to the overall complexity of the case.

Following service of Dr D’s factual evidence (his detailed witness statement), the Claimant amended his case on causation relating to hypothetical onward management and the extent to which he would have hypothetically recovered in the absence of any alleged negligence by the Defendants. This was an unusual thing for a Claimant to do – typically claimants maintain their original causation case unless their own expert evidence forces them to change position later in the process. Specifically, the Claimant in Dr D’s case amended his causation case to say that, had he been referred to the Musculoskeletal Service by Dr D at an earlier stage, imaging would have been undertaken, which the Claimant asserted would have led to surgery at an earlier stage.

We were then able to provide a counter to that argument. Dr D’s evidence in response was that, due to the Claimant’s presenting symptoms, he would not have made an urgent referral and, even if he had, the waiting times at the time in question were significantly longer than those asserted by the Claimant.

How did the claim conclude?

We went on to serve highly supportive expert evidence on behalf of Dr D, in relation to both breach of duty and causation. Soon after, the Claimant effectively discontinued their claim against Dr D. The explanation given was that, following review of Dr D’s expert evidence, they considered that, on balance, the Claimant’s claim against the Co-Defendants was stronger. The Claimant made a ‘drop hands’ offer to Dr D, which is an offer of settlement where both parties agree to discontinue the claim and pay their own legal costs. This did not involve any real concession on the part of Dr D, as the “Qualified One-Way Costs Shifting Rule” in clinical negligence claims would have prevented him from recovering any costs from the Claimant in any event.

However, the Claimant’s agreement to drop their case against Dr D and not to seek any costs against him was a very significant concession on their part. A claimant in a clinical negligence claim will typically persist until they secure at least a nominal settlement payment, and payment of (or a significant contribution towards) their legal costs. The Claimant’s decision to discontinue the claim without trying to recover any legal costs against Dr D (and Medical Defense Society as his medical defence organisation) indicates that the expert evidence we served on behalf of Dr D really left the Claimant with no realistic alternative. This meant that all of the (considerable) work done in serving robust factual evidence for Dr D, instructing experts of numerous disciplines, working closely with those experts on their evidence, ensuring that evidence countered all the allegations presented, and taking detailed instructions from Dr D had been worth it, particularly given the high value of the claim.

This was an excellent outcome, and a pleasing vindication of Dr D’s care and skills. It illustrates the importance of securing robust factual and expert evidence, even if input from numerous experts is required. Legal representatives with an in-depth understanding of the issues, the strategic skills to identify opportunities to pass the claim on to other defendants, and the tenacity to force a claimant into worthwhile concessions, can protect a doctor’s reputation. They also help to reduce the overall cost of claims, particularly where large sums are being claimed.