“The law is reason, free from passion” (Aristotle) - or perhaps not if you are a clinician accused of negligence.
Obtaining good factual evidence is essential for the successful defence of a claim. The key to obtaining that evidence is effective and empathetic communication with the doctors, nurses or midwives who were involved in the care of the patient and from whom we seek factual evidence.
Whilst we do our best to defend and resolve claims within demanding parameters we must keep in mind the inevitable toll on those witnesses, in terms of emotion and also time, as a result of their involvement in a claim for compensation as a result of alleged negligence.
In each claim the medical records tell part of the story but, very often, the clinicians who cared for the patient can explain so much more about what happened, essentially they “fill in the gaps” where otherwise assumptions are too easily made. Importantly, clinicians can explain the reasoning behind the contemporaneous clinical decisions. Such factual input is necessary to counteract the insidious, and frequent, application of hindsight in judging the standard of care.
When we need factual evidence often a Trust Legal Manager will contact the clinician on our behalf to seek their comments and then will provide direct support to that clinician throughout the life of the claim. However, where the clinician is no longer at the Trust we essentially “cold call” them, by letter or email, asking for help. Often the stakes are high and time is very short.
An apparent failure by the clinician to respond to our plea for help is frustrating but we need to take a little time to consider the impact of our request on the clinician concerned. As lawyers can we really imagine how it must feel for a clinician to receive a solicitors’ letter advising that not only has a patient had an adverse outcome but he or she is now seeking compensation? Worse still, that patient may be blaming you for what has happened. For the clinician there will be that initial sinking feeling, followed by inevitable stress, and possibly annoyance or anger - whether or not they feel that they have been wrongly accused of substandard care.
Further, there will be some concern about what will happen in the case, and how long it will take to resolve, whether they will have to give evidence and how will this impact on their career.
Although we are busy and working against tight Court timetables requiring us to produce evidence to support the defence of the claim we must not forget that clinicians are often working at full capacity or beyond, are sometimes studying for exams or are tutoring, and so setting aside time to consider often voluminous records, and review their involvement, is not easy. We need to be very clear about the timetable we are working to and why the timetable is important – that is we are not simply trying to make their life difficult!
What can we do to help both the clinicians and ourselves?
To help the factual witnesses, and also to get the best evidence
to make a decision whether we defend or settle the claim, we must
be clear why we are writing, who we represent and what we need, why
and when. We also need to be clear about whom the claim
is against and that generally there is no personal financial
We need to be aware of the impact of our communications and we should also ensure that there is a level of support which, if not from the Trust concerned, we can provide by being available to talk through the issues and respond to quick queries by email. Of course, where appropriate we can refer the clinician to their medical defence union.
- Plain English
It is easy for us to slip in to using legal jargon such as “pre-action protocol”, “directions”, and “CMCs” and to the uninitiated these are meaningless and unnecessarily lead to confusion. We should use plain English to explain not only the issues in the claim, but also more practical issues about how the Court process works. We also need to use some care in explaining the different roles of the solicitor and barrister and, for example, what a conference with Counsel actually involves and who attends.
- Explaining the impact of providing information
In making contact with the clinician we should ask him or her to let us know if they have any concerns about the standard of care given to the patient – it is far better for us to be aware of areas of difficulty at the outset. Reassurance should be given about how the information will be used and that it remains confidential until the witness is happy for the evidence to be disclosed. Where necessary the clinician should be warned that potentially they can be approached by the patient’s lawyers and again we can offer support in those circumstances.
- Practical Guidance
The format of a statement is prescribed in the practice
direction to CPR Part 32. This should be explained to the
clinician. Further, we should advise the clinician to avoid
the temptation to give opinion evidence in a factual statement!
Where it is not possible to interview a clinician in person we should ensure that the clinician is confident to set out details of his or her experience and qualifications, to refer to helpful documentation, in addition to the records, such as protocols or Trust guidance and to explain what happened in his or her own words. It is crucial that the Clinician is aware that his or her words will be scrutinized by the patient’s legal team and so what is said must be as accurate as possible and where they cannot remember what happened they should say so.
- The legal tests for a finding of negligence
It is important to explain how the clinicians’ care is assessed to have been either appropriate or negligent, essentially what the patient needs to prove to succeed in her or her claim. The legal tests of breach of duty and causation can be baffling. We need to explain at the outset how the standard of care is reviewed and assessed by an independent legal expert, the lawyers and the Court.
Although at the outset there is unlikely to be any direct contact between the clinician and the independent expert we must facilitate some exchange of ideas. A clinician who is facing criticism of his or her care should have the opportunity to raise issues and ask questions of the expert so that they understand why a criticism has been made in the context of the legal claim, for example a failure to keep appropriate medical records.
- Trial (by name and by nature)
As legal advisors we know that the vast majority of claims do
not reach a trial and we need to say so as from the outset many
clinicians are immediately worried about this. If the claim
does prove to be one that is defended to trial then the clinician
will need additional support to understand what will happen at
trial, how the evidence is given and how to present him or herself
in order to give evidence clearly and with confidence.
Working effectively with the factual witnesses is not only rewarding in itself but will lead to the best possible evidence to inform the decision whether to defend or settle a claim.