The MDU’s report for 2016 asserts that 85% of claims closed during the year were successfully defended – an impressive figure. These claims will generally relate to doctors’ private work or the general work of GPs. This compares with the NHSLA reporting for 2016/17 that 55% of claims were resolved without the payment of damages. Of concern to the MDU, in addition to their expenses in defending those claims, was, in relation to successful claimants, understandably the amount in costs paid to successful claimant’s lawyers and the higher value of damages as a result of the reduction in the discount rate used to calculate the value of future losses.
But perhaps of concern to all those involved in advising in such claims, including the medical expert witnesses, is the apparent failure to sift out a much larger percentage of these claims before they were progressed. It is in nobody’s interest to run a claim that fails or has to be abandoned – certainly not the claimant’s (or the claimant’s family’s) or the clinician’s, and very rarely in the interest of the lawyer who is effectively financing the claim on behalf of the claimant.
A careful, complete, proper and realistic assessment of the prospects of a claim and the evidence available in relation to it by the medical expert, with careful consideration of (and application of) the standard of proof, the Bolam test or the Montgomery test and all issues of causation of damage (‘did any breach of duty make a difference in outcome’) should mean that few claims are progressed that have to be abandoned subsequently. And the claimant lawyer should be ensuring that the expert’s opinion stands up to scrutiny on all of these counts.
Perhaps too many experts and lawyers do not fully understand what their role is and what the law requires to be proved to bring a successful claim.
Interestingly in relation to professional conduct claims, the MDU reported that of those GMC cases that went to a panel hearing, their in-house solicitors ‘achieved a finding of no impairment for 54.5% of members, compared with the GMC’s most recent four-year average figure of 22% (2012–15)’. Does this reflect an increase in unjustified complaints being made, an improvement in the quality of work of the in-house solicitors, a statistical blip, or what?
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