I don't think AF is saying that. The Trust may pragmatically admit liability but it is up to us as consultants to explain that decision to the juniors and support their decision appropriately.
Simon
-----Original Message-----
From: Tony Adams [mailto:[log in to unmask]]
Sent: 01 September 2005 11:45
To: [log in to unmask]
Subject: Re: Sacphoids
We'll have to agree to disagree on this one.
I've known Trust solicitors to go for settlement simply because it is less
expensive and although the claimant's case is weak, it's not worth the
expense to defend. Whereas the claimant might get £500 or may a couple £K,
the cost of fighting the might run into £10,000s. The level of proof of
whether or not there is a case to answer is much lower that the standard of
proof in a civil case at court.
I think it would be very misleading and damaging for my juniors to think
that when the Trust opts to settle a case that this was because they were
negligent.
Tony
> -----Original Message-----
> From: Accident and Emergency Academic List [mailto:ACAD-AE-
> [log in to unmask]] On Behalf Of Adrian Fogarty
> Sent: 01 September 2005 00:51
> To: [log in to unmask]
> Subject: Re: Sacphoids
>
> On the contrary, in order to settle a case, whether in court or out of
> court, the claimant must "prove" the case on liability, i.e. the burden is
> on the claimant to show that the defendant has breached their duty of care
> (note that the defendant does not bear the converse burden of "proving"
> they
> were not negligent). That may not be the same as proof in the scientific
> sense, as in civil law the test is "on the balance of probabilities" i.e.
> greater than 50%. But don't kid yourself that settlement out of court is
> not
> an admission of liability. Your Trust might try to tell you that but they
> would, wouldn't they! What you may be suggesting, I think, is settlement
> without admission of liability but that only rarely happens these days in
> medical negligence cases, partly because of the influence of medical
> indemnity agencies. The vast majority of out-of-court settlements involve
> admission of liability.
>
> Adrian
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