Articles and Case Studies

Being sued – a painful journey

02 Jun 2021

Being sued - a painful journey

As medical practitioners, we really want to do our best for our patients. And despite the massive weight of expectations we work with and under, we do care. I could not conceive of willingly doing any harm to anyone.

You have been served

Imagine a day like any other day in a medical practice. You get called to reception and a man walks up to you. He thrusts an envelope into your hands, tells you that you have been served, and walks away. Just like that. The nightmare has begun and it doesn’t go away.

In the envelope you find formal solicitor’s papers informing you of an intention to sue – that a patient has found your treatment unacceptable and harmful; that you have caused them wilful and unnecessary harm; that you have been negligent and not shown reasonable skill and duty of care. And they are claiming a huge amount of money as compensation.

Your day has irrevocably changed. Somehow, getting to the end of the day, I checked the relevant patient records. Fortunately, my notes had sufficient information to confirm that what they had claimed did not happen. So settling down, I wrote and sent a letter to MDA National.

Grappling with reality

As the gravity of the situation sank in, all my responses rose to the surface. How could this person possibly think I was so incompetent? After all my years in practice, and the countless times I’ve done this… and so on. And the fear starts. Fear of being destroyed. Fear of being humiliated. Fear of the unknown. 

After more correspondence and meetings with MDA and their external specialist team, the upshot was that this case would be defended. Information gathering began. What was alleged? What actually happened in the consulting room? What evidence supported their claim or my counterclaim?

They later told me that my clear input and instructions from the start, acknowledging what was right and what was not, were instrumental in helping them build my defence. 

I liked the team and the work they did. They fully explored the topic, found strong experts, and sent the plaintiff to some of them for their opinion. Some wider areas (seemingly irrelevant to me) were investigated, and I was told that success depended on covering all bases and all aspects of the area of medicine in question. This truly served us well later.

Despite reassurances that the case was unlikely to proceed further, we kept getting closer and closer to an appointed court hearing date. As time dragged on, the endless waiting chipped away at my endurance. I felt completely stuck.

After two years, things gained momentum. I was impressed with the amount of trouble the legal team went to. Researching and finding appropriate expert witnesses, presenting the case to them and assessing their reports. I tried to carry on as if nothing had happened.

I tried to stay detached, but it wasn’t easy. 

My time in court

My barrister, who was pleasant and competent, introduced me to the world of legal manoeuvring. Finally, the court proceedings began. Most of day one was spent in the logistics of the case. Seated at the back of the room, I understood nothing. I listened through a kind of fog, even though the legal team did explain things to me.

The plaintiff gave their story, and then witnesses on their behalf. Questions and cross-examination. I started getting incensed again. What were they saying? Look at all the discrepancies! My barrister seemed calm. Some lines of enquiry he pursued; others he didn’t. Apparently, it was to do with not ruffling feathers at this stage.

That evening, I was briefed again and told not to get upset or angry; to just answer the questions put to me. I wanted to know what I should do if I was asked a stupid question. The advice was to state that it was a hypothetical question and explain why – this saved my skin at least once.

The days went by in a blur. It was my turn on the stand, with my barrister in the morning; the cross-examination after lunch. The opposing barrister’s questions twisted and turned, trying to find a weakness to explore. I followed instructions, kept calm, and answered questions without adding anything.

A legal dance in action

The case went on for three more days. Expert witnesses were present either in person or electronically. First the general practitioners, then the other specialists. These were extremely stressful days.

When it became apparent to the plaintiff’s lawyers that the initial claim did not have legs, they looked for other ways to pursue me, changing tactics to deal with the vagaries of each turn! Several amendments to the claim were made; most accepted, others not.

Hence, my team’s wisdom of getting a wide view of the subject from the outset. The initial claim causing physical harm morphed into a charge of assault – I had not written “consent obtained” in the notes. It was dealt with by referring to my “normal practice” and many years of experience. Other parts of the notes indicated a clear timeline, and that was crucial. 

So, my time in court. Very unpleasant. But I did learn something of my own resilience – of staying connected to the passion I feel for the profession, and staying connected to the healer I am.

Whilst giving evidence, I looked directly at the plaintiff on several occasions. At that stage, I felt no anger or resentment; only a deep sadness at the life circumstances that had prompted them to go down this path.

The outcome

The judgment came through in less than a month. The judge found in my favour, with costs. I was told only around five per cent of cases ever get to court, with most settled beforehand – because you never know which way a judge will go. It is the great unknown. 

So, if you find yourself in a similar situation, take heart. Things can work out.

You will feel fear, panic, indignation, frustration and rage – but speak to people, and get support or counselling. Trust your team implicitly and get out of their way so they can do their job.  


Complaints and Adverse Events, Doctors Health and Wellbeing, Regulation and Legislation, Anaesthesia, Dermatology, Emergency Medicine, General Practice, Intensive Care Medicine, Obstetrics and Gynaecology, Ophthalmology, Pathology, Practice Manager Or Owner, Psychiatry, Radiology, Sports Medicine, Surgery, Physician, Geriatric Medicine, Cardiology, Plastic And Reconstructive Surgery, Radiation Oncology, Paediatrics, Independent Medical Assessor - IME, Gastroenterology
 

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