Defend or settle?

The decision of whether to defend a case or settle it is always made with the direct involvement of our members.

Complaint or claim?

When we are talking about defending or settling, we are really talking about how claims for compensation are handled. This is a legal process, often initiated via a solicitor who acts on behalf of the patient, although patients sometimes represent themselves.

A complaint is not yet a legal process, but still requires a response. Complaints made to you or your practice should be handled in keeping with your practice complaints procedure.

A request for a refund or costs towards remedial care is not yet a claim, and should be dealt with as complaints. Speak to the DDU before responding to any complaint.

What should I do if I receive a letter from a solicitor?

If you've received a solicitor's letter asking for records, or notifying you of a potential claim, it is important you contact the DDU straight away.

Call our advice line on 0800 374 626 and you will normally be put straight through to a dento-legal adviser. They will be able to answer any questions you might have and will let you know how to proceed.

How does the DDU defend a claim?

In the initial stages of a claim, all parties are given the opportunity to review the facts, gathering information and seeking expert opinion where necessary. The DDU will arrange and manage this process for you, corresponding with all parties on your behalf while keeping you firmly in the loop.

During this period, there is the potential to reach an informal resolution before the claim progresses to court. Such resolutions could be:

A claim may be identified as time-barred

  • The statute of limitations requires that claims from an adult patient are notified no more than three years after the date the patient became aware of their problem.
  • The DDU claims team will quickly identify claims falling outside the limitation period and will demand the claim is withdrawn.
  • In rare circumstances, the court does exercise its discretion and allows claims to go ahead even if the claim is issued outside the limitation period.

The DDU will robustly defend the claim

  • The claimant has the burden of proof to demonstrate that they were harmed by the negligence on the part of our member.
  • The DDU will gather evidence in support of your position, seeking expert advice, and will respond appropriately to the allegations.
  • Where it is clear there is no merit in the claim we will push to have the claim withdrawn.

The claimant may withdraw

  • During the information gathering period, it often becomes clear to the claimant or their representatives that there is no merit to the claim and they may withdraw.

A settlement may be advised

  • See below.

When do we settle a claim?

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 to do so if, after very careful consideration of all the relevant factors, the prospects of a successful defence are assessed to be unfavourable.

This might be because our expert witnesses have identified vulnerabilities in your case, or there is insufficient evidence to support your position, such as an absence of clinical records.

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.

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

Going to court

If a claim cannot be successfully defended at the early resolution stages then it will progress to trial. A judge will make the final decision based on submissions from all parties and expert witness testimony.

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. A settlement might still be agreed before to the final judgement.

The DDU will advise and support you throughout this process and will always involve you in any decisions that are made. Our primary focus will always be on defending the best interests of our members at every stage in the process.

Complicated cases

In more complex cases - for example, where there are significant vulnerabilities identified or the records are insufficient - the DDU may put the case to one of our professional panels for recommendations on how to proceed.

  • The dental advisory committee (DAC) is made up of practising dental professionals, all experts in their field. They will review the case and the expert opinions and make recommendations on how to proceed.
  • The MDU's cases committee and case management committee, which are also made up of clinicians, may also review cases and make recommendations.

The legal costs of claims may be high on both sides, even where the DDU have successfully defended or settled a claim early. The DDU has a responsibility to the membership as a whole to make sure their fund is managed appropriately. The above checks and balances are in place to make sure members get the best results achievable, whilst also keeping subscriptions as low as possible.

This page was correct at publication on 26/08/2021. Any guidance 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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