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DEFENDING MEDICAL NEGLIGENCE CLAIMS

A note by P S Ranjan & Co.
Advocates & Solicitors
Malaysia

The number of professional negligence claims against health care practitioners has increased a great deal of late in countries such as the United States and Britain. Even in Malaysia, there has been a noticeable increase in such claims recently. This increase is not entirely due to there being more health care practitioners in practice now than before. People are, at present, more litigation-conscious and more aware of their rights. And people are more prepared to challenge their professional advisers nowadays than they were before. This holds true not just for the medical profession but for every profession. Furthermore, developments by way of decided cases and legislation have led to higher quantum.

Legal Proceedings

When a health care practitioner receives notice of a claim or a court document alleging negligence or some other professional wrongdoing on his part, he must contact his solicitors without delay. This is particularly important in the case of the receipt of a court document such as a writ of summons. Court procedure provides that a defendant in a lawsuit must take certain steps within stipulated times. For instance, a defendant on whom is served a writ of summons must take the step of “entry of appearance” in the proceedings within a certain time, otherwise judgment in default of appearance may be taken against him. Setting aside a judgment in default is not always easy and judges have been known to be unsympathetic to defendants who do not give a satisfactory explanation for not entering an appearance within a time.

Quite often, the first intimation that a health care practitioner receives of a claim is not a court document but a visit from a dissatisfied patient or a letter from a solicitor. Again, where legal proceedings are likely to follow, a health care practitioner should not delay in referring the matter to his solicitors. If he is a member of a medical defence organisation or is covered by professional indemnity insurance, he should contact the organisation or insurer (as the case may be) or its solicitors for advice and assistance immediately.

Answering Complaints

The worst thing that a health care practitioner can do with a complaint is to ignore it. An early answer to a complaint or claim may nip the problem in the bud. People who have complaints against health care practitioners or hospitals often find it annoying to be faced with a “wall of silence” and in such situations would be tempted to go to those with a ready ear for such complaints, for instance, lawyers, politicians and journalists.

Whilst no admission of liability should be made without prior expert medical and legal assessment of the complaint or claim, a health care practitioner should not ignore a complaint or claim. There is nothing wrong in a practitioner providing a dissatisfied patient with an objective account of the clinical facts or in expressing sympathy when a patient has suffered a mishap.

The practitioner should be careful enough to find out the standing of the person making the complaint. Sometimes the complainant may be someone other than the patient and the practitioner would have to be satisfied that there would be no breach of the duty of confidentiality to the patient in disclosing information to the complainant.

Instructions To Solicitors

A health care practitioner facing a medical negligence claim should provide his solicitors with particulars of the claim; his comments on the claim; copies of the case-notes; his report on the case; his curriculum vitae; and copies of relevant correspondence. Handwritten notes are often illegible and it would help the solicitors a great deal if a typewritten transcript of the notes is provided. A peculiar feature of clinical practice in Malaysia is that few practitioners keep copies of referral letters written by them to consultants. It is important that copies of such letters be retained for such documents would contain relevant clinical details.

It would also help if practitioners when supplying documents to their solicitors organise them in some logical order and where possible explain the contents of the papers and the arrangement thereof. It is not uncommon to find practitioners merely photocopying the entire contents of a patient’s file and sending them to their solicitors who may have to spend a lot of time sorting out the papers.

Assessment Of Claims

It is the usual practice of the medical defence organisations and insurers to obtain an assessment of a claim by medical experts as early as possible.

The decision whether or not to settle a claim or to defend it would depend largely on the expert’s opinion and also on whether there is sufficient legal basis to defend the claim.

Claims may be founded on various grounds. For instance, a claim may be founded on an alleged error in diagnosis or treatment. Or it may be alleged that consent to a particular operation was not obtained, or that a patient was not advised as regards the risks inherent in a particular course of treatment. Or a claim may be founded on an administrative or clerical error which led to a clinical mishap.

It would be useful therefore to know what the allegations against the practitioner are though his advisers should look out for other potential problem areas too just in case further allegations are made at a later stage.

Generally, it is easier to defend a case involving allegations of errors of clinical judgment than a case where the error may be of an administrative or clerical nature not involving clinical judgment.

Settling A Claim

If the clinical and legal experts think that a claim cannot be defended, the prudent thing to do would be to settle the claim by making payment of an appropriate sum as damages instead of waiting for the matter to be ventilated in court, thereby resulting in adverse publicity for the practitioner and increased costs for everyone concerned. Where claims are brought on behalf of infants or those of unsound mind, a settlement of a claim or the withdrawal of a claim already filed in court cannot be effected without the approval of the court.

Damages may be awarded under various heads. Pain and suffering and loss of the amenities of life as a result of the injuries would be compensated. Economic loss, such as loss of earnings, would be another head of damage. An injured party may have incurred and may continue to incur expenses for such items as remedial medical treatment and special nursing care for which damages may be claimed.

As regards quantum, again expert medical assessment of the patient’s condition and the prognosis would be useful. So would a legal opinion on the likely award for damages that would be made should the matter go to court.

Defending A Claim

Should a clinical negligence claim be defended, the practitioner must be ready to give up some time so as to deal with his legal advisers; to write letters; to confer with experts; and to attend court. Expert medical support is very often necessary for a successful defence and no practitioner should think of going into battle without reinforcements.

To present a good defence in court, it is essential that the practitioner and his experts be aware of the issues between the parties. This would be disclosed in court documents known as pleadings and the practitioner should be well aware of the allegations against him and be ready with his answers to the allegations.

Whilst generally the burden of proof lies on the plaintiff, occasionally the burden of proof or the duty of explaining a mishap may lie on the practitioner. For instance, judges have sometimes applied the principle of “res ipsa loquitur” (literally, “the fact speaks for itself”).

In simple terms it means that an accident may have occurred in such circumstances as to raise the inference that the health care practitioner has been negligent. For instance, in retained swab cases, the burden of proof may shift to the practitioner to explain matters and to rebut the inference that a swab was left behind negligently.

Ordinarily, the standard to be applied in judging the actions of the practitioner in regard to matters of diagnosis and treatment is the standard of the ordinary competent practitioner. On this point, expert evidence regarding accepted clinical practice is quite often the deciding factor.

As for the third aspect of a health care practitioner’s professional task, which is the giving of information and advice to patient, the standard to apply is not the professional standard but the “patient” standard. Therefore, the information and advice must be given according to what a reasonable patient wants or needs to know or, in some cases. what a particular patient wants or needs to know.

Reducing Complaints And Claims

A detailed analysis of the reasons behind complaints and claims against health care practitioners and the measures to avoid complaints and claims is beyond the scope of this paper. Generally, practitioners are advised as follows:-

  1. not to practise at a level beyond their competence, as determined by their qualifications, training and experience;
  2. not to delegate tasks to those not competent to undertake such tasks;
  3. to write adequate and legible case-notes; and
  4. to communicate well and in a considerate and courteous manner with their patients.

It would help if health care practitioners and hospitals have a simple and effective complaints procedure. A prompt and careful investigation of a complaint, by the practitioner or consultant in charge, followed by an explanation to the complainant would help to reduce the number of future complaints and help prevent dissatisfied patients from taking their grievances elsewhere.

A large number of complaints end up in the courts and before tribunals and in the media and elsewhere because patients see health care practitioners as being unresponsive to complaints and requests for medical information or being overly protective of their colleagues. Similarly so as regards hospital authorities.

It would also help if medical experts are responsive to requests from plaintiffs for opinions in medical negligence cases. In many cases, an expert’s opinion given to a patient stating that the practitioner concerned had acted correctly may dissuade the patient from pursuing the matter. If the experts are in agreement that the practitioner’s actions are indefensible then the claim may be settled without the need for expensive and protracted proceedings in court.

If experts are unwilling to consider requests for their opinions from plaintiffs, the result very often is that the plaintiff gets the answer regarding the allegations against the practitioner only in court – usually at great cost in terms of time and money for both plaintiff and practitioner.

Conclusion

Very often a practitioner asks his legal advisers whether upon successfully defending a negligence suit, he may counter-sue the plaintiff for damages. It is almost impossible to do so successfully. The courts are very reluctant to allow such counter-suits. In rare exceptions such as in the case of wrongful bankruptcy or company winding-up proceedings, the courts have allowed countersuits for damages. But in the ordinary case, the citizen’s right to take his grievance to court should be respected.

Or course, the successful party in a lawsuit would usually be awarded costs against the unsuccessful party. The courts are reluctant to think of practitioners as a privileged class who should be shielded from the adverse publicity of a lawsuit. If a practitioner succeeds in his defence, the fact of his success is some vindication of his actions which would help to dispel any adverse publicity generated by the suit.

Health care professionals must endeavour to maintain public confidence in themselves by maintaining reasonable standards of practice. They must deal with complaints and requests for information in a proper and effective manner. And the profession must ensure that the victims of medical negligence are properly compensated just as much as practitioners wrongly accused of negligence should be defended by their colleagues.

All Rights Reserved
19 October 2020

 

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