Dealing with litigated complaint can be one of the most stressful times in a doctor's professional life. This section outlines what you can expect during the legal process.


It is worth remembering that only a small proportion of matters notified to MDA National Insurance are litigated. A relatively small number of these matters proceed to a court hearing.

For a patient to be successful in a claim for medical negligence, they must prove to the court that:

  • they were owed a duty of care by the doctor;
  • that the duty of care was breached; and
  • that the breach caused them to suffer damage (injury).

How to respond

Keep the fact that a claim has been made against you in perspective. Do not take the matter personally. Remember, that in the absence of a no fault compensation system, fault must be alleged in all claims, in order to establish an entitlement to damages. MDA National Insurance is here to manage the litigation for you.

It is fundamental that you refrain from contacting the patient, or their solicitor, once a formal claim is made.


You may find the legal process frustratingly slow. There are often short flurries of activity and then nothing happens for months. If you hear nothing from us during these periods of inactivity, don't worry.

You will be kept informed of developments as they occur but you are welcome to contact one of our medico-legal advisors at any time.

The legal path

Claims may:

  • be discontinued (the patient withdraws);
  • be settled (an agreement to pay an amount of money to the patient );
  • proceed to trial.

A brief overview of the milestones in the path follows. Court procedures vary from State to State and this is intended to be a general guide only.

Issue of proceedings

If a patient is determined to proceed with litigation, court proceedings will be filed. For some patients, there is nothing you can say or do that will alter their decision. Proceedings are usually in the form of a Writ of Summons, or a Statement of Claim. This document sets out particulars of the alleged negligence and particulars of the injuries the patient claims to have suffered.

If you receive a Writ of Summons or a Statement of Claim, you must notify MDA National Insurance immediately. MDA National Insurance has a limited amount of time in which to instruct solicitors on your behalf and to file an Appearance with the court. An Appearance informs the court that you have received the Writ of Summons or Statement of Claim and that you are represented by a solicitor.

If an Appearance is not filed within the required time frame, the Plaintiff could enter judgment against you and take steps to have the damages that are then payable assessed against you.

Your response

You must provide us with sufficient information to enable us to prepare a defence on your behalf. Once proceedings are issued, we will instruct a firm of solicitors to assist in your defence. A conference will usually be convened at the solicitors' office (or by telephone) and a statement or proof of evidence will then be drafted on your behalf. This will be finalised after you have reviewed the document and made any necessary changes.

Expert Opinion

Other evidence will also be obtained. A crucial part of this is obtaining the opinion of independent medical experts, who will comment on the management of the patient and whether it was in accordance with accepted peer practice.

Counsel's Opinion

In some matters we will seek an opinion from Counsel (barrister).

The Strategy - Defend or Settle

The medical evidence relied upon by the patient will be served upon your solicitors. At the same time, your solicitor will gather expert opinion on your behalf. All expert opinion will be considered by the Cases Committee. Your claims manager, after input from your solicitor on the legal issues and consideration of the decision of the cases committee, will decide whether or not the case will be defended. Your views will be sought before a decision to defend or settle is made.

If a decision is made to settle the patient's claim, you will not be required to admit liability. All cases settled are done so by way of Deed of Release, which includes a confidentiality clause (preventing the terms of the settlement from being disclosed).


If a case against you proceeds to trial or hearing, you will be represented by an expert medical negligence team.