Articles and Case Studies

I've Been Contacted by a Lawyer

15 Nov 2016

Ms Janet Harry

by Ms Janet Harry

contacted by lawyer

Out of the blue, Dr Y, a Resident Medical Officer, receives an email from a lawyer wanting to schedule a time to discuss the treatment she had provided to a patient in the Emergency Department (ED). The letter states the patient has commenced legal proceedings against the hospital alleging negligent treatment. Dr Y can't recollect seeing this patient, as it was a high-volume ED and had occurred some time ago. What should she do?
Dr Y telephones MDA National's Medico-legal Advisory Service for assistance, and explains that at the time of the event she was employed by the hospital as an intern in the ED. Dr Y is informed that she should be indemnified (covered for the claim) by the hospital.

The Medico-legal Adviser obtains the lawyer's letter from Dr Y and prepares an email for Dr Y to send to the lawyer, seeking confirmation that the lawyer is acting for the hospital and that she is entitled to be indemnified by the hospital in these legal proceedings.

Dr Y receives a response confirming that the lawyer is acting for the hospital and its employees, which includes Dr Y, and she is entitled to indemnity. Based on this response, Dr Y makes arrangements to meet with the lawyer.

When a patient makes a claim

Patients can make a claim against a doctor or a hospital alleging that they received negligent treatment. The term “negligence” is a legal term, not a medical one. For the claim to be successful, the patient must prove that there was negligence on the part of the hospital or doctor. In order to do this, the patient must prove that:

  • they were owed a duty of care
  • the duty of care was breached, and
  • the breach caused the damage or injury to the patient.

What actions should you take?

If you receive a letter from a lawyer asking to meet with you, you should take the following actions prior to responding:

  • Contact MDA National’s Medico-legal Advisory Service for advice.
  • Seek confirmation that the lawyer is acting for the hospital and that you are entitled to hospital indemnity in the proceedings.
  • Once your indemnity has been confirmed in relation to the claim, agree to liaise with the lawyer acting for the hospital.
    • You will be contacted to arrange a mutually convenient time to meet or discuss over the phone.
    • Prior to the meeting, review the medical records (it is vital that you do not make any changes to these records), or ask the lawyer to provide you with a copy of the records before the meeting. Also bring any other relevant documents, such as any separate or contemporaneous notes you may have made.
    • At the meeting, the lawyer will obtain detailed information from you about your role in treating the patient. Depending on the extent of your involvement, the lawyer will then prepare a draft statement for your review. You should check that the statement is clinically accurate and contains a complete picture of your role in the patient’s treatment. MDA National can assist in the background and review the draft statement for you, even in hospital-based matters. Once you are satisfied that the statement is accurate, you can sign and date it and return it to the lawyers.

What happens next?

After this, you may hear nothing more with regard to the matter. The vast majority of medical negligence claims are either discontinued or settled without any hearing or trial, on a confidential basis. Indeed, less than one in twenty medical negligence claims proceed to a hearing, although it is not unusual for matters of this nature to take up to three years to be resolved.

If the lawyer is acting for a patient who is suing the hospital, you should first contact MDA National or the hospital’s administration or legal team for advice. Generally, the advice will be that you should not speak to the lawyer acting for the patient who is making a claim against the hospital.

Whether it is MDA National or your hospital requesting information, it is important to cooperate with whoever is indemnifying you, as it is in their best interests to protect your best interests.

A request for a statement is not a reflection of your care, and the purpose of your input is to help the lawyer to piece together the whole story to determine the best way to manage the matter.

Janet Harry
Medico-legal Adviser
MDA National

Complaints and Adverse Events, Anaesthesia, Dermatology, Emergency Medicine, General Practice, Intensive Care Medicine, Obstetrics and Gynaecology, Ophthalmology, Pathology, Psychiatry, Radiology, Sports Medicine, Surgery, Physician, Geriatric Medicine, Cardiology, Plastic And Reconstructive Surgery, Radiation Oncology, Paediatrics, Independent Medical Assessor - IME


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