Defend or settle?

The decision to defend a case or settle is taken with you.

It is our policy to involve members in the way their case is managed and, wherever possible, to take the action they want. We always seek the consent of the member or members concerned to settle any claim, and we only propose settlement of a claim if, after very careful consideration of all the relevant factors, it is assessed that the prospects of a successful defence are unfavourable.

On rare occasions, a member may ask us to settle a claim that we feel should be defended or vice versa, but after talking it through we are usually able to agree a way forward.

The process

  • If a case cannot be successfully defended, after talking with you we will negotiate a settlement on your behalf. This may involve making some admissions, but this will be agreed with you beforehand.
  • Sometimes a case cannot be successfully defended because of non-clinical factors, the most common one being a lack of adequate clinical notes. Remember that records are a key part of patient care and can provide vital evidence if your standard of care is called into question.
  • Before a decision is made in a more difficult case, it may be reviewed by our Dental Advisory Committee, which is made up of practising dental professionals, all experts in their field.
  • Cases are also considered by the MDU's cases committee and case management committee, which are also made up of clinicians.
  • If a claim goes to trial, the judge may decide not to accept an expert's evidence if it does not stand up to close examination. In the end, it's up to a judge to determine if the standard of care was acceptable.

Whether a claim is ended, settled before trial, settled at trial or found in favour of the member, the legal costs may be high on both sides.

This guidance was correct at publication 12/07/2018. It is intended as general guidance for members only. If you are a member and need specific advice relating to your own circumstances, please contact one of our advisers.

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