Facing litigation after retirement

Even after a long period of retirement, doctors can be subject to a clinical negligence claim, so it’s important to act quickly and get the right advice and support from your defence organisation. The MDU’s Dr Claire Wratten reports.

A clinical negligence claim can arise many years after a doctor’s involvement in a patient’s care. 

Among other things, a claim can relate to a delayed diagnosis, surgical errors and poor communication. 

The time-scale for bringing a claim for a competent adult begins three years from the date of the alleged negligent act or the knowledge that care was potentially negligent. 

For example, claims are being brought against retired gynaecologists many years after insertion of vaginal mesh, on the basis that the patient wasn’t aware of problems due to their mesh until a considerable time after the operation in question.

And if the patient is a child, they have until their 21st birthday to issue court proceedings. If the patient lacks capacity – for example, due to a brain injury – then there is no time limit for bringing a claim.

This means that a claim could arise once a doctor has retired from clinical practice and could come completely out of the blue. 

Upsetting scenario

That is clearly a very upsetting scenario. It is essential to contact your defence organisation straight away, who will be able to offer the correct advice and support.

In general, if you receive any kind of correspondence from a solicitor instructed by a patient, do not reply directly to the solicitor. Your defence body can do this on your behalf. 

When you contact your defence organisation, it will need:

 A copy of the solicitor’s letter;

 A note of your request for assistance;

 Your contact details

 Photocopies of the medical records if they are available to you;

 A factual report about your own role in the incident. 

You may not remember the details about the patient’s care, but you can base your comments on any records that you have access to and what you would normally do in the circumstances of the patient’s care.

There are various steps to the clinical negligence process, but it is worth being aware that not all of the steps during the process prior to court proceedings being issued – the so-called pre-action process – may be followed. 

Therefore, a retired practitioner may first hear about a potential claim at any of the points set out below.

In general, the first letter that is sent when a solicitor is instructed by a patient – now termed a claimant – to investigate a potential medical negligence claim is a request for their medical records. 

If you have retired, this correspondence may be dealt with by your previous hospital and practice, and you may not be aware of it. 

But if you do receive a request for your private medical records, then the records need to be disclosed within a month of the request. 

Access to records

Depending on your working circumstances and how long it is since you retired, you may or may not have access to the relevant medical records. 

And if the claim has arisen many years after your care of the patient ended, you may have destroyed any private records that you held. 

Your defence organisation will be able to provide you with advice to ensure that the appropriate consent has been obtained for disclosure and about the disclosure process itself, as well as about what to do if records have been destroyed.

It is worth remembering that a lot of claims do not proceed any further than disclosure of the medical records.

If the claim does proceed further, the claimant’s solicitor may then send a Letter of Notification. This letter may be sent before the solicitor has fully investigated the case, but will set out an outline of the case against you. 

Although a Letter of Notification does not require a formal response, it can provide a helpful indication as to the nature of the claim that will be made and your defence organisation can advise you on whether a response should be provided at this stage.

Letter of Claim

The next stage in the clinical negligence process is the Letter of Claim stage. A Letter of Claim is a formal letter in which the claimant will set out their case in detail. 

This letter requires an acknowledgement within 14 days, and a formal response within four months of the date of receipt. 

In order to investigate the allegations being made against you and provide a response to the Letter of Claim, your defence organisation will need to liaise with you and also obtain advice from independent medico-legal experts. 

If you have already notified your defence organisation of the claim, it is likely that the Letter of Claim will be sent to your defence organisation rather than directly to you. 

However, should you receive a Letter of Claim directly, given the need for the allegations to be responded to within a certain period, it is imperative that you contact your defence organisation straight away.

Compensation payment

Once your defence organisation has investigated the allegations in the Letter of Claim, it will advise you whether a response can be served denying liability or whether the claim needs to be settled with a payment of compensation to the claimant. 

At this point, it may well still be possible to resolve the claim informally – for example, the claimant may accept the denial of liability and discontinue the claim or a
settlement may be negotiated between the claimant’s solicitor and your defence organisation on your behalf.

But if the dispute is not resolved at this stage, the pre-action process ends and the next step is for the claimant’s solicitor to issue court proceedings. This is the commencement of the formal legal process. 

Once court proceedings are issued, the documentation setting out the case against you – called the Particulars of Claim – will generally need to be served within four months. If you are being assisted by your defence organisation, it will instruct a solicitor to accept delivery of the court proceedings on your behalf.

Strict time limits

However, if the claimant’s solicitor has not followed the pre-action process, service of court proceedings may be the first time that a retired practitioner becomes aware of a potential claim against them.  

Strict time limits apply once the court process has commenced, so it is vital that you contact your defence organisation as soon as you become aware of court proceedings being issued or served against you and send it any court documents you have received. 

Failure to do so can result in the court entering judgment against you in the claim.

The next step will be for a defence to be drafted and served on your behalf, and thereafter the court sets a timetable for exchange of information between the parties. 

A statement, drafted by a solicitor on your behalf, will be exchanged for a statement from the claimant, and medico-legal expert evidence obtained by the parties is also exchanged. 

Although it is natural to be extremely worried about the possibility of having to give evidence at a trial if court proceedings are issued, in fact this is relatively unusual.

The whole aim of the court timetable is to allow the parties to reach a resolution of the claim – either by way of the claim discontinuing or a settlement agreement being reached – without the case ending up at a trial.  

Despite the timetable required by the civil procedure system, claims can take many years to conclude. This can understandably be very stressful, so it is essential you seek advice and support early to allow your defence organisation to guide you through the process and act on your behalf. 

Dr Claire Wratten (right) is senior medical claims handler at the MDU