Screening Tests

Clinical negligence is a very complex area of law. Cases can be interesting and intellectually stimulating, but also emotionally draining. It is easy to run up considerable costs, not to mention the sheer amount of time and effort required; and yet statistics from the defense unions indicate that four out of every five potential cases are successfully defended.

These are not good odds, and this article looks at the lessons learnt to navigate the clinical negligence minefield in a faster, better, more efficient way - based on personal experiences as a medical expert from over 3,000 cases.

On reviewing these, ten recurrent themes come to light, due attention to which heralds the success or otherwise of a particular case. These may be conveniently represented by the word ‘SCREENING’, both as one of the themes, and as an acronym for the other nine areas.

Screening

From the outset, it is of prime importance to carefully assess any complaint and determine whether, even on face value, the essential triad of duty, breach and consequential (or ‘but for’) damage is likely to be present; as most cases fail on the first hurdle of causation. Subsequence is not consequence. It is all too easy to get sucked into the client’s story where the potential for a case may at first sight appear obvious to a lay audience.

Doctors have a duty of candour, and they may apologise if an outcome is not as expected, even though there has been no breach of their duty of care. Sometimes this has been taken by both clients and lawyers as an admission of liability; which is not necessarily the case. Any drug or procedure has an element of risk, and a poor outcome may be an unfortunate complication of a disease, injury or modality of treatment. With any medical management, nothing can be guaranteed. It is a matter of weighing up potential benefits against any possible downside, which is the central tenet in the doctrine of informed consent.

In many cases, a client’s concerns are more in the nature of a complaint about behavioural issues, including attitudes of staff, lack of communication or perceived delays in the management of their case. These are best dealt with within the normal complaints procedure for the practice or institution involved, and do not usually give rise to the legal definition of ‘medical negligence’.

Direct enquiries would be expected to result in a written response in a matter of months. This can clarify issues and, on some occasions, complaints may result in the instigation of a Serious Incident Review (SIR), with the potential to identify areas where medical care has been deemed to be substandard and could be subject to legal challenge. However, if lawyers are involved on a client’s behalf before the complaints procedure or SIR has been completed, it is likely any written response would not be released as the matter would be regarded as sub-judice.

The key to mitigating against making an emotional decision to pursue a case is to obtain a preliminary screening report by an experienced medical expert in order to establish who, in all the circumstances, might have a duty of care, what standard should be applied, and whether or not any consequence was likely to have occurred directly due to the suggested breach.

This initial opinion does not go into great depth on the specifics of the case, and can usually be based on a detailed statement from the client; but may require perusal of some specific notes and records along with the responses to any complaint. Without clear evidence of the essential triad, putting together a case becomes more of a phishing expedition which can be very costly in terms of time, effort and also financial layout which may not be recoverable.

An early, general screening overview therefore helps to contain costs as it can be provided for a fraction of the fees that would be required for a full liability and causation plus a condition and prognosis report. Therefore, obtaining a screening report as a general overview is a vital first step in the initiation of a claim. The word ‘SCREENING’ is also an excellent acronym for the other nine areas where difficulties for lawyers can and do arise.

Statute

The Statute of Limitations sets a maximum time after the subject incident during which legal proceedings may be initiated. It does not automatically apply, and courts have discretionary powers to grant permission to proceed if there is a compelling reason and the basis for the case appears sound. But Rodney Peyton on clinical negligence challenges and why preliminary reports are useful SCREENING TEST the Statute serves as a warning to lawyers to avoid unnecessary delays in moving forward their investigation - or they may unintentionally run out of time and find themselves at the receiving end of a claim in professional negligence.

This is another benefit from swift, initial screening, allowing early determination as to whether or not matters are likely to proceed. If a case seems weak and a firm declines to take it on, clients can be informed at an early stage so they are free to seek alternative medical or legal opinion before they run out of time.

Counsel

Barristers taking on clinical negligence cases are usually highly experienced and extremely busy. When engaging counsel, it is worth ensuring they have enough time to discuss, guide and lead through the evidence and will keep in regular contact about the case.

Having a screening report allows a more informed discussion of the medico-legal aspects and, in particular, the raising of specific questions that experienced counsel may wish to be included in the briefing for the more detailed expert reports. Regular contact allows counsel to maintain an ongoing overview as the various reports are received, so they can provide direction and ensure the case stays on track, particularly giving advice on the handling of any new issues that may arise.

In complex cases, where there are likely to be multiple medical reports on both sides of an argument, it is appropriate to obtain a secondary review when all reports have been received, whereby an experienced expert can look at all the available evidence and then work in continuity with counsel to consider the implications of the information in terms of potential strengths and weaknesses before court proceedings. It is a grave error to leave this until the day of the hearing.

Reports

The initial screening report gives an early steer on liability and causation, determining the direction of a case without spending a lot of money on multiple specialist reports. It should give advice on which specialists should be involved and in what order such reports should be obtained.

From the outset, it is important to determine exactly who has been regarded as having a duty of care towards the claimant. Normally this is easy to determine, but it may not be so obvious. At first sight, the case may appear to involve a particular consultant, but closer examination may reveal it is actually in the remit of other professionals from different medical specialities, such as general practice or accident and emergency, or indeed para-medical specialities including nursing or physiotherapy.

Anger is a common emotion best handled through empathy, understanding and a certainty [the client] is being listened to

With private patients, it is necessary to name specific personnel, whereas in the public scenario, indemnity is provided by the Trust or institution. Therefore it is necessary to be clear about the duty of care and whether it is vicarious. As a rule of thumb, it is better to co-join as many defendants as possible as it is easier to remove than to add a potential defendant at a later stage.

On occasions, it is necessary to reverse the sequence and obtain a report detailing likely consequential damage which may have arisen as, if none can be determined, a report on liability and causation is likely to be superfluous.

Experts

Experts must clearly understand that their primary duty is to the court no matter who instructs them, and be a recognised expert in the specific subject matter of the case. They must be able to reason logically, both orally and on paper, setting out their opinion against relevant facts and tests without using hyperbole, in a way that lay persons in general, and the court in particular, can understand and interpret.

Experts must acknowledge that the standard required is reasonableness not perfection, and be prepared to alter their stated opinion if new evidence, which they have not previously had a chance to consider, is presented during proceedings.

Ethics

It is an expert’s duty to remain independent no matter who engages them. They need to be coldly objective and demonstrate no conflict of interests or bias on behalf of the claimant, the defence or a specific line of medical therapy.

It is quite reasonable to advocate a particular view as to how a particular complaint should be managed. However, it must also be accepted that there is likely to be a reasonably held range of opinion which experts should outline and, if necessary, indicate by logical argument why their opinion should be given preference.

From a lawyer’s standpoint, it is not acceptable to ask an expert to ‘tweak’ a report in order to place their particular client in a better light. While some attempt to justify this by stating that they are only trying to do their best for the client, they do not serve either the justice system or their profession well.

An expert who agrees to change any element of a report under such circumstances is compromised, not just for the case in hand, but for any other; and is open to being severely criticised in court. It is not unknown for both experts and lawyers, found to have breached this code of conduct, to have their professional registration to practice removed by their governing body. Such censure can have considerable implications for their personal, professional and financial well-being. If an expert does change their opinion, they must be fully open and transparent, stating logically the reasons why.

On occasion, there has been a tendency to pursue a case that has no chance of success up to the door of the court in order to get a settlement of some sort, at least to cover expenses. Recent judgements have made it clear that courts regard such behaviour as a breach of ethical duty.

Notes and records

Guided by the initial screening and comments of counsel, all appropriate notes and records need PI Focus | December 2021 December 2021 | PI Focus 27 to be expeditiously sourced, well organised chronologically, indexed and paginated for ease of both study and reference; especially as, in some cases, many thousands of pages may be involved. As well as contemporaneous medical notes, other records may be valuable, for instance letters to clients from an institution following a complaint or other internal documents such as a report resulting from a serious incident review. External documents may also be available following a postmortem or inquest, and the client themselves may have notes in a diary or even photographs on their phone.

Medical experts should be wary if they find notes have been altered in any way or redacted, especially if this has been carried out by the legal team either for the defence or the claimant. Unless the redaction relates to the names of third parties, it is not best policy to edit notes in any way before forwarding them for an expert opinion.

Insurance

Medico-legal cases can be very expensive, and costs need to be controlled. There is no such thing as a water-tight case, and loss can result in a heavy financial burden. Any law firm should be clear how it is going to be compensated if a case does not proceed as expected.

Some form of insurance is therefore needed. Clients may self-insure or have a legal policy in place at least to cover initial advices. It may also be possible to obtain legal aid or afterthe-event (ATE) insurance, if it is clear from the initial screening report and the opinion of counsel the case has a high likelihood of success.

No medical knowledge / expertise

The lawyers most likely to get in trouble are those who do not undertake these proceedings on a regular basis. There are many nuances from both a medical and legal point of view that can make cases that look similar produce markedly different outcomes.

An important understanding is that reasonableness is the standard, and not perfection. Further, no medical treatment can be guaranteed of success. It is understandable, when discussing a treatment with the patient, that there will be a tendency for doctors to be optimistic, which courts have accepted as reasonable ‘therapeutic reassurance’. Downside risks must also be explained, as known complications do arise during the process of gaining informed consent.

But just because a patient has been told about the risks and signed a consent form, does not mean that when such difficulties arise, they could not be considered to be due to a negligent act. An independent medical legal expert should be in the best position to determine whether a poor outcome would reasonably be regarded as due to a known complication in all the circumstances, or represent a negligent breach of the duty of care.

Guiding client expectation

In some cases, particularly when the consequences have been devastating for the client, even the most experienced lawyers may become emotionally involved. The rule is empathy, not sympathy, and to remain objective throughout so clear, unencumbered, professional advice may be given to the client.

It is important to get to know the client in order to understand how to influence them. At an early stage, an in-depth conversation is needed, to ascertain exactly what outcome a client expects from the case. Some want to punish, others wish for monetary compensation; but on many occasions the client is primarily looking for a detailed, understandable explanation as to what happened. It is therefore important to listen to understand where the client is coming from, to ask questions and summarise what is heard in order to gain clarity. Anger is a common emotion that is best handled through empathy, understanding and a certainty they are being listened to, rather than any logical argument.

Managing a client’s expectations is one of a lawyer’s most important functions, and vital if the client is to feel content with the outcome, however long the process takes. There must be clarity on deliverables; what sort of timeframes are to be expected, who will have to be consulted, what the costings will be and who will be paying for it.

It is important to be totally authentic and provide a personal service, explaining the system within the office, how clients can get through and how often they will be updated. Unfortunately, on many occasions the expert may be the only person who actually has face-to-face contact with the client, especially during the recent pandemic, which can lead to misunderstandings. Clients need to understand what the expert's role is, and that they are not acting as a GP or medical specialist for the client.

The expert may often be the only person who actually has face-toface contact with the client… which can lead to misunderstandings

Whatever is agreed, it should be written down in a letter of agreement, not relying on oral recall. The client should be clear about the steps, for instance that matters will be discussed with them once in receipt of the preliminary screening report and advice from counsel. With everything, it is about trust - which includes ‘no’ when necessary. At the first sign of any difficulties, communicate quickly.

Conclusion

These have been the most frequent challenges in the legal process noted in over three decades of dealing with personal injury and clinical negligence cases. The basis of a sound case is being able to show strong liability and significant harm coupled with a good, credible claimant. Legal representatives must have a deep understanding of the many complexities involved, and be aware of potential pitfalls.

Securing an early screening and proficient advices from an appropriate medical expert goes a long way to mitigating any possible financial and reputational risks.