With negligence claims involving dental professionals no longer unusual, Debbie Herbst explains the dos and don’ts of responding to a clinical negligence claim.
Don’t: respond to the patient’s solicitor
The first you are likely to know about a claim is when you receive a letter from the patient or their solicitor requesting their dental records, accompanied by the patient’s signed consent to release the records. Although you may want to defend your actions, it may make the claim more difficult to manage if you write to the solicitors or contact the patient directly to discuss the case, even at this early stage.
If you enter into correspondence, the claimant’s solicitor may assume you are managing your own defence and you could find yourself fielding unwanted calls and letters. Even worse, you might inadvertently say something that makes the claim more difficult to defend further down the line.
Do: pass the letter on to your dental defence organisation (DDO) immediately.
Don’t: delay contacting your dental defence organisation
The civil litigation process runs to a strict timetable so it’s not a good idea to put a solicitor’s letter to one side to deal with days or even weeks later.
Time is pressing and your defence organisation will need to assemble the necessary documentation. Initially, you will be asked to send us all the correspondence from the patient’s solicitor, a signed note formally instructing us, your contact details, the patient’s records and a factual report of your involvement with the patient and details of any other dental professionals involved. Your DDU claims handler might also need to seek expert advice, instruct solicitors and to meet you to obtain a statement.
Do: send all documentation needed to your defence organisation without delay.
Don’t: take it personally
Avoid thinking that the claim is an indictment of you or your practice: in the DDU’s experience sadly, it’s no longer unusual for dental professionals to receive a compensation claim, even if their clinical management has been appropriate.
Finding out that you are being sued by a patient can be very upsetting but the vast majority of cases are discontinued in the face of a robust defence, or because the claimant had no real case. In fact, over the last 10 years the DDU has successfully defended over 50% of claims without making a compensation payment to patients.
If a claim needs settling then that should be done at an early stage, with your agreement to avoid causing unnecessary distress to all concerned. However, it’s important not to settle defensible claims on purely economic grounds. Rest assured though, you’ll be involved in such decisions.
It may help to talk to colleagues about what you are going through (bearing in mind your duty of confidentiality) and to your DDU claims handler about any concerns as we can provide support, advice and reassurance.
Do: remember that your DDO is there to provide advice and support as well as legal representation.
Don’t: talk to the press
If you are approached by the media for a comment about a case, don’t be tempted to give your side of the story. There is a real risk of breaching patient confidentiality and being censured by the GDC, as well as helping the journalist write a more high profile story.
The best approach is to explain that your duty of patient confidentiality prevents you from commenting (even if the patient has spoken to the press about the allegations). Depending on the outcome, you may want to make a brief statement at the end of a case but your DDO can advise you on this when the time comes.
Do: get on to your DDO’s press office for advice.
Don’t: put your life on hold
The civil litigation process can move quite slowly. Years can pass between receipt of a letter before action and a formal letter of claim and many claimants will decide not to take things further. Even after formal proceedings have begun, it’s not unusual for claims to be discontinued, particularly after expert reports have been obtained.
Very few claims ever reach a courtroom but in the very unlikely event that a case gets to court, your defence organisation can assist you through each step and provide you with the best possible support and legal representation.