Medical negligence claims: The essential elements 

Ms Dee Duffy outlines what doctors should know about medical negligence claims

The possibility of a medical negligence claim is understandably a significant concern for doctors. It is important to recognise that a claim in itself does not always indicate substandard care. Indeed, sometimes, doctors are named on proceedings where they have limited or even no involvement in the plaintiff’s care.

Effect on a doctor

While acknowledging the struggle for patients and their families involved in litigation, events giving rise to a claim and the claim process itself can have a significant impact on a doctor. 

The ‘second victim’ phenomenon means that involvement in patient safety incidents can significantly affect the professional and personal lives of doctors. Some doctors may lose confidence in their clinical judgment and find the often lengthy, adversarial legal process difficult. The importance of a support network should not be underestimated.

Knowing the steps involved in litigation can help prepare and manage expectations. Unfortunately, litigation can be a slow process due to court lists, expert availability, and other delays, and it is important to prepare for extended periods of inactivity.

Knowing the steps involved in litigation can help prepare and manage expectations

Contact with indemnifier

The first thing any doctor should do when faced with the possibility of a claim is to contact their indemnifier or the State Claims Agency, as applicable.

Sometimes the first indication of a claim doctors receive is a request for records by a patient’s solicitor, who is instructed to investigate any potential grounds for a claim. 

Regardless of whether a request for records has been received or a formal complaint has been made, doctors should contact indemnifiers if they become aware of an adverse outcome or a patient safety incident.  

Most forms of professional indemnity cover include an obligation to notify potential claims as early as possible.  

Clinical records

The clinical records constitute extremely important evidence, central to any litigation. Retrospective changes even to provide clarity should never be made to contemporaneous records following receipt of a claim.

Any such changes can be detectable and would have a severe impact on a doctor’s credibility, not to mention constituting grounds for a possible complaint to the Medical Council and/or the Data Protection Commissioner.

In the unlikely circumstance where a retrospective addition or clarification is needed, an indemnifier can advise on this by ensuring the date of the addition and the identity of the author is recorded.

Matters to consider when releasing records go beyond the scope of this article and guidance should be sought on any particular nuances of the request. 

Legal correspondence

Usually, prior to court proceedings issuing, solicitors acting for patients or their families send a ‘letter of claim’ or a ‘pre-action letter’. 

The tone in these letters can be stark and seem aggressive, but should not be taken personally.

The legal terminology is often required to satisfy legislative obligations. Such letters should be passed to a doctor’s indemnifier immediately without responding to the solicitor.

Once cover is confirmed, a doctor’s indemnifier will correspond with the plaintiff’s solicitor and typically will nominate a firm of solicitors to accept service of proceedings, thereby avoiding a situation where a summons has to be personally served on a doctor. 

Pleadings

Pleadings are formal written documents exchanged between the parties in litigation. The first pleading in medical negligence proceedings is called a ‘personal injuries summons’.

The summons sets out the details of the parties to the proceedings, the allegations and the injuries alleged to have been suffered. Plaintiffs are required to swear an ‘affidavit of verification’ confirming that the contents of the summons (and subsequent allegations or particulars of the injuries suffered) are true and accurate. 

A doctor’s solicitor will then file a document known as an ‘appearance’, formally coming on record for the doctor in the litigation. Solicitors will typically also instruct barristers during the course of the litigation to represent doctors as part of the legal team.

Other formal documents in the process include a ‘notice for particulars’ seeking further details and ‘interrogatories’ (formal written questions to help clarify facts and narrow issues), as well as replies to both. In some cases, it may be necessary to obtain or provide documentary evidence, such as medical records, through a process called ‘discovery’.

Sometimes court applications or ‘motions’ are made by either party, in order to compel the other party to take a step in the proceedings.

A doctor’s written ‘defence’ will usually be drafted by a doctor’s legal representatives, setting out the particulars of any admissions or denials made on a doctor’s behalf. It is essential that a doctor can fully stand over the contents of any defence delivered on their behalf and they must swear an affidavit verifying the contents.  

Investigation

The legal team representing a doctor will investigate a claim thoroughly and will consult with the doctor to clarify and understand their position. Doctors should always be open and honest when liaising with indemnifiers and solicitors and it may be necessary to explain clinical terminology and processes to them.

Expert evidence

Expert witnesses are usually instructed on behalf of both the plaintiff and the doctor.  

The onus is on a plaintiff to prove on the balance of probabilities that the doctor has breached their duty of care (ie, was negligent) and that the injuries suffered by the patient were caused by that breach (causation). A plaintiff will use factual evidence (eg, their own testimony, medical records) and expert evidence in an effort to prove their case. Generally, plaintiffs are required to have an expert report supportive of their allegations before issuing proceedings.

The experts giving evidence on breach of duty usually practise in the same specialty as the doctor being sued, according to Irish caselaw. Expert reports must be exchanged before trial. It is very common that plaintiff and defendant experts have opposing views, but their overriding duty is to the court.

Practice directions 2025

In a positive effort to try to reduce delays and streamline medical negligence proceedings, two practice directions were introduced in April 2025 (HC131 and HC132) by the President of the High Court.

These provided for a dedicated clinical negligence court list, allowing the judge to set strict timelines for case progression. The practice directions provide that trial dates will only be assigned once both parties have completed all investigations and exchanged their evidence. The directions also reinforce expectations of engagement with mediation (where the parties engage the assistance of a mediator to try to reach an acceptable agreement to resolve the dispute). The intended effect of the practice directions is for defendants to be more aware of the case they have to meet before a trial date is set. 

Settlement

This earlier exchange of evidence can help legal teams decide whether to attempt settlement prior to trial as they are able to carry out a comprehensive risk/benefit analysis. The majority of medical negligence cases are resolved without the necessity for a full trial. Some settlements are agreed for nominal amounts and sometimes plaintiffs discontinue proceedings.

Settlement may be recommended for a number of reasons and it is not necessarily an indication that a doctor was at fault. Most settlements are agreed without admission of liability and some include confidentiality clauses.

When deciding whether it is appropriate to settle a claim, a doctor’s own views are very important. Some indemnity policies, such as the policy arranged by Medisec, have a clause that a doctor’s consent will be sought before settling any claim. This can provide doctors with some element of control and reassurance about the protection of their professional reputation.

Trial

If it is recommended to fully defend a claim at trial, doctors will be advised about what to expect. Trials can be stressful experiences, particularly hearing the plaintiff’s evidence.

Trials are heard in public meaning they can be reported in the media. When all the evidence is heard, a judge will make a decision as to whether or not the plaintiff has proved their claim and, if so, what compensation will be awarded. A judge may decide that the claim has been successfully defended, in which case no award will be made. Usually in those circumstances, the plaintiff will be responsible for the defendant’s legal costs.

Conclusion

In our experience, doctors who have the support and understanding of family and colleagues tend to cope better with the strain of litigation and we would always encourage reaching out for support. A doctor’s indemnifier will be happy to adopt any communication preferences regarding how often they are updated as some doctors prefer to put the matter to the back of the mind while their lawyers work on their behalf. 

It is important that doctors avoid letting adverse events or claims distract from or minimise the good patient outcomes and positive impacts they have had on many patients’ lives.