Добавил:
Sekretar
kiopkiopkiop18@yandex.ru
t.me/Prokururor I Вовсе не секретарь, но почту проверяю
Опубликованный материал нарушает ваши авторские права? Сообщите нам.
Вуз:
Предмет:
Файл:Ординатура / Хирургия / Библиотека им академика М.И. Перельмана / Книга_3302_Библиотеки_им_академика_М_И_Перельмана
.pdf
110 What is disclosure, and what is disclosable in a medical negligence case?
As accurate and clear medical records are crucial for any medicolegal defence,
it is important for health care professionals to incorporate these tips into their
daily practice.
NOTES
1. Science Research Council v Nasse [1980] AC 1028.
2. CPR 31.2.
3. CPR 31.4.
4. CPR 31.8.
5. CPR 31.12 .
6. CPR 31.11.
7. CPR 31.3(1)(a).
8. CPR 31.3(2).
9. CPR 31.3(1)(b).
10. CPR 31.19(1).
https://t.me/med1917
111
22
The legal process and the
relationship with your lawyer
Health care professionals may occasionally nd themselves involved in legal
matters, including medical negligence claims. While this can be an intimidating
experience, it is important to remember that a compensation claim is not about
assigning blame. Most health care professionals will encounter a compensation
claim at some stage in their career.
When faced with such situations, the health care professional must under-
stand the process and the dynamics of their relationship with their legal team. By
doing so, they can navigate the legal proceedings more eectively and alleviate
some of the associated anxieties.
THE INTIMATION OF A CLAIM
A health care professional may become aware of a potential claim in a number
of ways, such as:
●
ere may have been an internal investigation (e.g. complaint review or
incident investigation) that identied failings in the care provided and the
possibility of a claim.
●
e patient or their family may directly inform the health care professional
about their intention to bring a claim. is may be in a conversation where
they express dissatisfaction with the treatment received or through formal
written correspondence.
●
e patient’s legal representatives may correspond with the health care pro-
fessional directly. is is more common in relation to care provided by GPs
and private treatment.
●
e patient or their legal representative may request copies of their medical
records and any other associated records or documents.
DOI: 10.1201/9781003179351-27
https://t.me/med1917
112 The legal process and the relationship with your lawyer
●
e trust or hospital may advise the health care professional of a claim noti-
ed. is may be through formal channels, such as the legal or risk manage-
ment department.
If the health care professional becomes aware of a potential claim, it is vital that
this is reported through the appropriate channels.
NHS settings should have clear policies and protocols for how to report a poten-
tial claim. If in doubt, start with the trust’s legal department, and they will be
able to advise further. e NHS Resolution’s reporting guidelines
1
set out when
a trust should notify a claim to them and how. Notication is undertaken by the
trust’s in-house legal team, who may need input from the health care profession-
als involved in the case.
e NHS Resolution expects the trust to preserve relevant notes, records and
other key documentation; to respond promptly to requests for instructions; and
to keep those involved updated as to the progress of a particular claim and its
outcome. Once notied, the NHS Resolution decides whether to handle matters
in house or to appoint panel solicitors on a full or limited basis.
In a private setting, advice should be sought from the Medical Defence
Organisation (MDO) immediately, and the MDO will advise on the next steps.
e MDO team managing the case usually includes a doctor, a case handler and
sometimes a solicitor. ey will want to see notes and any other documents that
may be relevant. ese should be provided promptly. Usually, the MDO will
write to the claimant’s solicitors to conrm their representation and will ask the
claimant’s solicitors not to communicate directly with the health care profes-
sional but to correspond via the MDO.
THE INITIAL INTERACTION WITH THE LEGAL TEAM AND
THE IMPORTANCE OF HONESTY
During the initial interaction with their legal team, health care professionals
should feel comfortable disclosing all relevant facts. Lawyers are bound by pro-
fessional ethics and legal obligations to maintain the condentiality of informa-
tion shared. By upholding client privilege, lawyers provide a secure and protected
space for health care professionals to share sensitive details without fear of adverse
consequences. is privilege extends to any initial witness statements provided,
as well as any legal advice received. is means that such communications cannot
be disclosed to third parties without the consent of the health care professional.
It is crucial that health care professionals engage openly and honestly with
their legal team so that the legal team can assess the situation, evaluate the poten-
tial legal implications and provide appropriate guidance. Any information pro-
vided must be accurate and truthful, even if it may be unfavourable or potentially
https://t.me/med1917
The letter of claim 113
damaging to the case. Withholding or misrepresenting crucial information can
signicantly compromise the lawyer’s ability to advise eectively. Moreover,
being forthcoming with all relevant information allows the legal team to address
potential challenges and anticipate counterarguments from the opposing party.
Clear and concise communication helps to eliminate misunderstandings and
ensures that the legal team is well informed and can give eective advice.
Sharing information promptly is also vital, as it allows the legal team to gather
all necessary details and initiate appropriate actions in a timely manner. By pro-
viding all relevant details and responding to requests for information in a timely
and accurate manner, health care professionals contribute to a strong working
relationship with their legal team.
DISCLOSURE
To assess the validity of their case, the patient’s solicitors must review all relevant
records and information. e majority of these records will be obtained from the
health care provider (in an NHS setting) or health care professional (in a private
setting). When a disclosure request is made, full disclosure should be given, even
if this involves disclosing documents that may be unhelpful to the case.
Providing records and information in a timely and comprehensive manner
ensures that the patient’s solicitors have access to the necessary documentation
to evaluate the claim eectively. e health care professional’s cooperation in
fullling a disclosure request plays a crucial role in enabling a fair and thorough
assessment of the case.
THE LETTER OF CLAIM
If, aer the disclosure of records and taking expert advice, the claimant decides
to proceed with a claim, their solicitors will send a letter of claim. is serves as
the formal initiation of the legal process. It is typically prepared by the claimant’s
lawyer and is addressed to the defendant. e letter should be based on indepen-
dent expert evidence and should contain the following information:
●
e claimant’s details
●
e factual background, including what treatment the claimant received,
when and where the claimant received that treatment and who gave that
treatment
●
e details of the alleged negligence and the resulting injuries and harm
e letter should be comprehensive and factual and clearly articulate the
allegations.
e claimant should not issue formal proceedings until 4 months from the
date of the letter. is gives the defendant’s legal team the opportunity to con-
sider the claim fully.
https://t.me/med1917
114 The legal process and the relationship with your lawyer
THE LETTER OF RESPONSE
e defendant must acknowledge receipt of a letter of claim within 14 days and
provide a letter of response within 4 months.
Upon receiving the letter of claim, the defendant’s legal team should investi-
gate the case and prepare a letter of response. is response provides an oppor-
tunity for the defendant to address the allegations and present their position.
e defendant should only provide a letter of response supported by independent
expert evidence.
e legal team should collaborate with the health care professional and
medical experts to gather evidence, assess the merits of the claim and develop a
well-reasoned and evidence-based response. If the legal team proposes to make
admissions in the letter of response, it is usual practice to seek agreement from
the health care professional.
In some cases, the letter of response may admit the claim either in part or in
its entirety. In such circumstances, it is usual to then enter settlement negotia-
tions. is allows both parties to explore the possibility of resolving the dispute
amicably, potentially avoiding the need for formal court proceedings.
If the claim is denied, the letter of response must provide clear and detailed
reasons. is allows the claimant to consider their position and evaluate the
strength of their case.
e aim is to ensure that both parties are provided with sucient information
to make informed decisions and have every opportunity to resolve the dispute
informally.
Either side can suggest alternative ways of resolving the dispute (e.g. nego-
tiation, mediation or settlement meetings) at any time up to the start of formal
proceedings.
COURT PROCEEDINGS
If the dispute remains unresolved following the letter of response, the claim-
ant has the option to initiate legal proceedings, which involve submitting a for-
mal court document known as a claim form. Once the claim form is ocially
lodged with the court, the claimant has 4 months to serve it upon the defendant.
Typically, this is done by post or email to the defendant’s legal representatives.
e particulars of claim is a formal document that outlines the precise facts
on which the claimant relies and the allegations made against the defendant. In
most cases, this is similar to the letter of claim already served.
e defendant’s legal team must formally acknowledge receipt of the particu-
lars of claim to the court within 14 days. Failure to do so may result in the court
entering judgement against the defendant.
DEFENCE
e defence should be served within 28 days of the proceedings being served,
unless an extension is agreed with the claimant. Failure to serve the defence
https://t.me/med1917
Trial 115
within the required timeframe can result in a court judgement being entered
against the defendant.
e defence is the ocial response to the particulars of claim. It addresses
each paragraph and indicates whether it is admitted or denied. If it is denied, a
detailed response should be provided.
e defence contains a statement of truth, which veries its contents. is is
usually signed by the trust’s legal team or by the legal representative on behalf of
the trust. If care was provided privately, the health care professional will be asked
to sign the statement of truth. If the document contains a false statement, it may
lead to contempt of court.
2
Being in contempt of court is punishable with a ne
or maximum penalty of 2 years in prison.
WITNESS STATEMENTS
As the claim progresses, the court will order that factual witness statements be
exchanged by the parties.
e defendant will need to serve statements of fact that support their defence.
is wi ll include statements from those directly involved in the care of the claimant.
e lawyers dra the witness statements based on interviews and notes with
the health care professionals involved. As with the defence, a witness statement
requires verication through a statement of truth, which the health care profes-
sional will need to sign.
EXPERT REPORTS
Experts are doctors with broad experience in a particular eld of medicine and
medicolegal work. ey are usually still in practice or have recently retired.
Expert reports play a pivotal role in medical negligence cases by providing
an objective opinion on the standard of care and, if the care was substandard,
whether the substandard care caused harm.
An expert’s duty is to advise the court, not the party who instructs them.
Experts give their advice in a written report. e initial report is advisory only
and is legally privileged. However, if the case is litigated, the court will order the
parties to exchange written reports from their respective nominated experts. Both
sides may put written questions to an expert to clarify the report, and the expert
must answer these. Aer time, there will usually be a meeting of experts, and the
experts will produce a joint statement stating their respective opinions on the key
issues in their expertise. is is a key stage in the case, as it enables the parties to
narrow down the issues that are in dispute. Should the case proceed to trial, the
expert will give oral evidence at the trial on the issues remaining in dispute.
TRIAL
Only a small number of claims ultimately proceed to trial. If a case does proceed
to trial, the factual witnesses will provide evidence, as will the experts. e trial
itself will be presided over by a judge, not a jury.
https://t.me/med1917
116 The legal process and the relationship with your lawyer
THE ROLE OF COUNSEL
In complex legal cases, the involvement of counsel (barristers or solicitor advo-
cates) becomes essential. Counsel provides specialist legal expertise, advises on
legal strategy and represents the health care professional in court proceedings,
if necessary. e lawyer and counsel work together closely to ensure a unied
approach, leveraging their respective skills and knowledge. Eective coordina-
tion and communication between the health care professional, their lawyer and
counsel are crucial to presenting a strong case.
CASE CONFERENCES
Conferences are meetings with counsel. ey play a vital role in the legal process
and are one of the most eective ways of assessing the case. ey take place at key
stages in the litigation and may be held in person or remotely. Oen, experts and
others in the legal team also attend.
Counsel is instructed by the legal team and will have been sent papers in
advance of a conference. Usually, they talk through the events and seek clarica-
tion of the facts and comments from the experts. Such a meeting is a chance to
discuss the progress of the case, evaluate evidence and agree on a strategy for the
upcoming stages. In sum, these conferences provide an opportunity to address
any concerns, seek clarications and ensure alignment between the health care
professional and their legal team.
NOTES
1. https://resolution .nhs .uk /wp -content /uploads /2019 /04 /NHS -Resolution
-Claims -Reporting -Guidelines -Sept-2022 -acc -checked . pdf.
2. CPR 32.14.
https://t.me/med1917
SECTION 6
Court
https://t.me/med1917
https://t.me/med1917
119
23
Giving evidence in court
Witnesses providing evidence can either be witnesses of fact or expert witnesses.
e rules relating to the presentation of evidence vary depending on whether
evidence is being given in a coroner’s court, a civil court or a criminal court.
Broadly speaking, evidence can be presented in several ways, including:
●
Documentary evidence: is includes physical documents, such as policies,
protocols, medical records and emails that are relevant to the case.
●
Witness statements: ese are written statements from witnesses that state
their factual accounts of events.
●
Hearsay evidence: Hearsay evidence is a statement made out of court, which
is presented in court to prove the truth of its content.
●
Expert evidence: Expert witnesses can be called to give their opinions on
technical or scientic matters relevant to the case.
●
Oral evidence: A witness can give their evidence in person in court.
When presenting evidence in court, it is important to follow the rules of evidence.
ese rules determine what is admissible and how it can be presented in court.
FACTUAL WITNESS STATEMENTS
Most medical negligence claims involve and depend on factual evidence, and
it is usual for the health care professionals involved in the incident subject to a
claim to be asked to provide a witness statement. ese statements provide fac-
tual accounts of events, including:
●
e actions taken
●
e reasons behind those actions or an explanation of why an alternative
course of action was not taken
●
In certain cases, what could have been done in a hypothetical situation
While the lawyer dras the statement to ensure that the form and content are
compliant with court rules, the statement is that of the witness and should there-
fore, as much as possible, be in the words of the witness. e witness should
be completely satised with its content and must sign a statement of truth to
DOI: 10.1201/9781003179351-29
https://t.me/med1917
Соседние файлы в папке Библиотека им академика М.И. Перельмана