Tuesday, 2 October 2018

How Often Can a GP Expect to be Sued?

Recently, the Medical Defence Union made a striking claim that a  general practitioner could expect to be sued four times over a 40 year career. But was the claim accurate?

The Medical Defence Union (MDU) and the Medical Protection Society (MPS) indemnify doctors including general practitioners , and help to defend claims brought against them. Where a negligence claim is made against an NHS hospital trust then NHS Resolution usually represents or arranges for legal representation for the Trust. Where an individual doctor is sued, the MDU or MPS usually act for them.

The "sued four times" claim was made in an MDU press release  that coincided with a speech by its Chief Executive to the Westminster Health Forum calling for "root and branch legal reform." 

The Press Release began:
"GPs can expect to be sued four times during a 40 year career, though very few are likely to be found negligent, the Medical Defence Union (MDU) revealed today as it called for a solution to the compensation crisis.
Speaking at a Westminster Health Forum seminar on the future for general practice in England, MDU chief executive, Dr Christine Tomkins explained that while over 80% of cases against MDU medical members do not succeed, the fear of being sued and the cost of professional indemnity is affecting GP morale.
Dr Tomkins commented:
'Claims against GPs have doubled in frequency and cost over the last seven years. Claims over £10 million are no longer unthinkable, and GPs can now expect a claim every 10 years.
'Last year in 83% of the medical claims against MDU members, the patient had not been negligently damaged."

The MDU's claims grabbed my attention because they sat uneasily alongside statements from the MPS and NHS Resolution.

The MPS had published a report in 2017 claiming that a typical GP could expect to be sued twice in a full career (half of the rate claimed by the MDU).

And the NHSR's annual report for 2017/18 showed that of 16,338 claims notified to it in that year, over 11,000 were resolved without litigation. 54% of all claims were settled with damages paid. 79% of litigated claims were resolved with damages paid.

NHSR also reported that, as has been the pattern in recent years, the number of clinical negligence claims had fallen compared with the previous year.

To a lawyer, and I would suggest to non-lawyers also, a person is "sued" when legal proceedings are brought against them. Receiving a complaint, even in the form of a solicitor's letter, may be stressful but it is not the same as being "sued". The MDU's statement therefore seemed to suggest that:

(i) A typical GP can expect to be a defendant to a court claim four times in a 40 year career.

(ii) In 83% of court claims against GPs, the GP is not found to have been negligent. 

This was certainly the interpretation in the British Medical Journal which reported:

"GPs can expect to be sued four times in a 40 year career, but the latest figures show that in less than a fifth of cases (17%) doctors are found to be negligent, the Medical Defence Union has said."

This was picked up by Student BMJ in this tweet:

Keen to become a GP? New figures show that you may as well expect to be sued in your career... about four times. “Claims over £10m are no longer unthinkable, and GPs can now expect a claim every 10 years,” says 's chief executive.

In fact, that understanding was wrong.
A typical GP will not be the subject of court proceedings four times in their career, and the success rate of claims brought through the courts against MDU members is not 17%.
I asked the MDU some questions about its press release and it has very kindly responded, providing some clarification. In doing so it has said as follows:
  • "... when talking about GPs being ‘sued’ four times in a career, we are referring to the average number of times a GP member will need to seek the assistance of our claims handling team (based on current notification frequency levels) over a 40 year career. This will include some cases that have not yet reached formal proceedings (and may not do so) and cases where compensation is sought by self-represented persons."
  • "The 17% refers to those medical claims against our members where we paid compensation to a claimant last year. Very few cases go to court, most are settled out of court."
  • "...the press release figures are referring to the number of times a GP member can expect to have a file opened on their behalf by our claims handling team which specifically manages compensation claims."

Therefore, the MDU's experience is that of all cases notified to their claims handling teams, 17% result in payment of compensation to a claimant. Cases notified may not have involved a solicitor at all and many more cases will be notified than result in a GP being sued.

The MDU was not using the term "sued" to indicate that a court claim was brought, but rather to mean that a claims file was opened. Its data does not show that a GP can expect to be the subject of court proceedings four times in a 40 year career.

GP's cannot expect to be sued every ten years.

Even so, the MDU's success rate in avoiding payment of damages in 83% of cases where the claims handling team provide assistance/open a file, is much higher than the NHSR's success rate (46%). The MDU has helpfully suggested one reason why this might be:

"Do bear in mind also that it is common for a claim to be brought by, or on behalf of, a single patient against multiple defendant GPs – both those involved in the clinical care and also, sometimes, the partners in the GP practice in question."

A GP might therefore face a claim as the professional partner of another GP who is alleged to have made a harmful error. In those cases it would never have been alleged that the partner GP was negligent.

I imagine also that NHS Trusts have more resources than GP's for dealing with complaints in house and so manage to avoid the need for NHSR to "open a file" more frequently than GP's avoid the need to involve the MDU or MPS.

I thank the MDU 's media team for answering my questions. I am sure that it would benefit everyone if the MDU, MPS and NHSR used consistently defined terms showing the number of complaints, formal letters of claim, and court claims, and the proportion of each that resulted in an agreed or court-ordered payment of compensation.