Just how level is the playing field?

This is the first of a series of posts about the defensibility of medical professionals in today’s litigious

Just how equal are the parties to a claim? Well, let’s look at the position of each side. On one hand
you have the claimant. The burden of proof lies here, the vast majority of claims arise in the tort
(civil wrong) of negligence. So, the claimant has to prove that he or she was owed a duty of care by
the defendant, that duty was not fulfilled, and the loss complained of followed as a result. Next, it is
entirely at the instigation of the claimant that a claim is made and pursed. The claimant can
withdraw the claim at any time; not free of charge in the later stages of the process, but
nonetheless, the claimant has control over their continued involvement. Costs, in theory (more on
this below) is a risk that is equal between the parties – in broad terms, the loser pays the costs of
both sides.

What about the defendant? Well, he can sit back and watch the claimant climb over the hurdle of
breach of duty and proving loss; right? Well yes, to a point.
Most people will be familiar with the phrase “no win, no fee”. This means a Solicitor pursuing a case
will only recover costs if the claim is successful. The upshot of that is that Solicitors pursuing claims
are as sure as they can be that they will succeed to some degree. The risk for a defendant is if they
do not investigate or consider the case until a relatively late stage and spend too much time playing
catch up...

It is very important to appreciate that there are several key stages in the life of a case. Key stage is
defined as the balance between litigation risk and costs. In medicine, there is often a clear break
between liability and causation. Old hands at defending claims will be very familiar with solicitors
insisting on a decision on liability before causation is addressed. Indeed, pre-action protocols for
claims handling are biased in this way. Insurers typically approach cases in this staged way.
Causation arguments are there to be had, the downside is they are very often developed late in the
process. Medical malpractice cases are a very good example of many cases having to concede
breach of duty yet succeed on causation.

You may say, that from the defendant’s perspective, a successful argument has merit whenever it
arises. That is true of course. However, the successful long-term management of a relationship with
an insurer will involve keeping attritional costs to a minimum. A major factor in driving premium
costs are claims handling costs and these are taken as an absolute figure. If insurers spend £100,000
on irrecoverable costs in successfully defending 5 cases, this counts every bit as much as £100,000
spent on compromising a claim where the doctor has been negligent. Practitioners often complain
that costs spent in defending unmeritorious claims should not count against them. Insurers look at
what is spent; the impact of costs on future premiums is often clear. Therefore, it makes sense for
insurers not to be exposed to them...

So, what can the defendant do to afford himself maximum protection with the many moving parts
outlined above in play? Candidly, he has to be self-effacing enough to take a hard, objective look at
circumstances of concern and to “invest” in the preparation of those cases in anticipation of a claim.
If the claimant’s Solicitor spends their time picking winners; the defendant must spend their time
identifying cases where they are vulnerable and developing a plan to manage them, of which
involving insurers is just one part...

To be continued...

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