A letter from a law firm does not mean you are being sued — but it must be taken seriously. The type of legal correspondence you have received determines your obligations and your response. Whatever the letter says, the first call you make should be to your medical indemnity insurer, not to the patient, not to the lawyer, and not to your practice manager.
Very few things create the kind of immediate anxiety in a doctor’s day as seeing a letter from a law firm in the mail. The instinct is often to react immediately — to call the patient, to write a response, to pull the records, or to speak to a colleague. Every one of those instincts, if acted upon without proper advice, can make your situation significantly worse.
This guide explains the different types of legal correspondence Australian doctors receive, what each type actually means, and the step-by-step approach to responding correctly.
Types of Legal Correspondence Doctors Receive
Not all letters from lawyers are the same — and the type of correspondence you have received determines what you are and are not required to do. The main categories are:
1. A Letter of Demand
A letter of demand advises you that a person (usually a patient or their estate) is making a claim against you and demands payment of a specified amount — or some other remedy. It is typically the first formal step before litigation is commenced.
A letter of demand is not a court document. You are not in court proceedings. You have not been sued. However, it is a serious communication that signals legal proceedings may follow if the matter is not resolved.
2. A Letter of Claim (Pre-Litigation Notice)
In many jurisdictions, personal injury legislation requires a claimant to give formal notice of a claim before commencing court proceedings. This is sometimes called a ‘letter of claim’ or ‘pre-litigation notice.’ It sets out the basis of the claim, the allegations, and the losses being claimed.
In NSW, for example, the Civil Liability Act 2002 and the Personal Injuries Procedures Act 2002 require pre-litigation steps including formal notification before most personal injury proceedings can be commenced. Other states have similar frameworks.
3. A Statement of Claim
A statement of claim (or originating application, depending on jurisdiction) is a court document. It means legal proceedings have been formally commenced against you. You will be named as a defendant. This is more serious than a letter of demand or a letter of claim — and it comes with strict time limits for responding.
If you receive a statement of claim, you have a limited time to file a response — typically 28 days in most jurisdictions, though this varies. Missing this deadline can result in a default judgment being entered against you. Contact your indemnity insurer immediately.
4. A Subpoena
A subpoena is a court order requiring you to produce documents or give evidence. It is different from all the above — it does not mean you are being sued. You may simply be a witness whose records or evidence are relevant to someone else’s proceedings. See our dedicated guide: Subpoenas for Doctors: Your Rights and Obligations.
5. A Records Request From a Law Firm
Sometimes a law firm will write to you requesting patient records without any accompanying claim or legal proceedings. This is the most informal of all legal correspondence — and the most often confused for something more serious. A records request from a lawyer is not a subpoena and is not legally binding. You must have the patient’s written consent before releasing any records in response.
Critical Distinction: Letter vs Subpoena: A letter from a law firm — no matter how formal, urgent, or intimidating it appears — is not a subpoena. A subpoena is issued by a court, bears the court’s seal, and has a specific return date. Only a subpoena creates a legally binding obligation to produce documents without patient consent. If you are unsure which you have received, call your medico-legal insurer before taking any action.
What to Do When You Receive a Lawyer’s Letter: Step by Step
- Do not panic — and do not ignore it. A lawyer’s letter requires a measured response. Ignoring it will not make it go away and may result in a default judgment or adverse assumptions being drawn.
- Contact your medical indemnity insurer immediately. This is the single most important step. Your insurer has experienced professionals who handle exactly these matters. They will assess the letter, advise you on what type of correspondence it is, and guide you through the appropriate response. Do not respond to the lawyer directly until you have spoken with your insurer.
- Do not contact the patient. Even if you know the patient well, contacting them after receiving legal correspondence could be seen as an attempt to interfere with the proceedings or to exert pressure. It may also amount to a breach of legal process. Your communications with the patient should go through your lawyers from this point.
- Preserve all relevant records. Do not alter, add to, or delete any clinical records relating to the patient. Do not make retrospective additions to notes. If you are concerned that your notes are incomplete, document your recollections separately and clearly label them as such — do not insert them into the existing record.
- Identify and secure all relevant documents. Gather the clinical records, correspondence, test results, referral letters, and any other documentation relating to the patient’s care. Keep them secure and intact.
- Identify any colleagues involved. If other practitioners were involved in the patient’s care — treating specialists, locums, after-hours providers — note their involvement. Your insurer will need this information.
- Do not discuss the matter with colleagues. The natural instinct is to seek reassurance from colleagues. Resist this. Discussions with colleagues about a potential claim can become discoverable in legal proceedings and can also inadvertently create a conflict of interest if they are later called as witnesses.
Clinical Scenario: The Monday Morning Letter Dr Ben returns from a week’s leave to find a letter from a law firm on her desk. The letter is headed ‘Notice of Claim — Medical Negligence’ and refers to treatment she provided to a patient 18 months ago. It lists allegations of incorrect diagnosis and delayed referral and advises that proceedings may be commenced. What Dr Ben should do: Recognise this as a pre-litigation notice (letter of claim), not a statement of claim. Note the date of the letter. Call his medical indemnity insurer the same day. Do not respond to the law firm. Do not contact the patient. Pull and secure the relevant records. Follow the insurer’s guidance at every subsequent step. What Dr Ben should not do: Write a response to the lawyer explaining his clinical reasoning. Call the patient to apologise or explain. Discuss the matter with the GP partner who saw the patient when he was away. Alter or add to the clinical records.
What Not to Do: The Most Common Mistakes
The most damaging mistakes doctors make when receiving legal correspondence are almost always made in the first 24 to 48 hours — before legal advice has been obtained. The most common errors include:
- Responding directly to the lawyer: This can inadvertently make admissions, waive privilege, or commit you to a position before the full facts have been assessed.
- Contacting the patient: This is almost always counterproductive and can be seen as interference.
- Altering records: This is a serious separate offence that will be discovered and will dramatically worsen your position in any subsequent proceedings.
- Discussing the matter with colleagues or staff: Casual conversations can become evidence and can compromise the privilege that would otherwise protect communications with your insurer and lawyers.
- Assuming it will go away: Many practitioners receive a letter, feel anxious, and then do nothing — hoping the matter resolves itself. Sometimes it does. More often, the next communication is a statement of claim, now with less time to respond and no head start on the defence.
- Engaging your own lawyer directly: Your medical indemnity insurance covers legal representation in exactly these circumstances. Your insurer will appoint lawyers experienced in medical negligence. Using your own lawyer without notifying your insurer may jeopardise your coverage.
Understanding the Medico-Legal Negligence Framework
A medical negligence claim requires a claimant to establish three elements: duty of care, breach of that duty, and causation of damage. Understanding this framework helps contextualise why not every complaint results in a successful claim — and why proper documentation is your most important protection.
Duty of Care
As a treating practitioner, you owe your patients a duty of care. This is rarely disputed in medical negligence cases — the existence of a treating relationship almost always establishes the duty.
Breach
The question is whether you breached that duty — whether your conduct fell below the standard of a reasonable practitioner in your position. In Australia, this is assessed against the standard of a reasonable practitioner in the same specialty or area of practice. Expert evidence is almost always required on this issue.
Causation
Even if a breach is established, the patient must show that the breach caused their loss. This can be the most difficult element for claimants to establish — particularly in cases involving misdiagnosis or delayed treatment, where the question of what difference earlier intervention would have made is contested.
The point is not to give you a basis for self-assessing whether a claim will succeed — it is to illustrate that receiving legal correspondence does not mean the claim has merit, and does not mean you have done anything wrong. Many claims are discontinued or resolved in favour of the practitioner.
What Happens After You Notify Your Insurer?
Once you notify your insurer, they will typically:
- Acknowledge the notification and appoint a claims officer or manager
- Request the relevant clinical records and a summary of the matter
- Instruct specialist medico-legal solicitors on your behalf
- Advise you on responding to the lawyer’s letter (or draft the response themselves)
- Guide you through any pre-litigation steps required by state-based legislation
- Keep you informed of the status of the matter
You are not alone in this process. Your insurer’s interest is aligned with yours — they want to resolve the matter appropriately, as quickly as possible, at the lowest cost. Early notification gives them the best opportunity to do that.
The Importance of Notifying Early
One of the most important — and most frequently violated — obligations under medical indemnity insurance policies is the requirement to notify your insurer promptly when you become aware of a circumstance that may give rise to a claim. This is sometimes called a ‘circumstances notification’ and it applies even before a letter is received — for example, where you are aware of a patient outcome that you think may lead to a complaint or claim.
Failing to notify early can jeopardise your coverage. If you become aware of a potential claim or adverse outcome and delay notification to your insurer, you risk your insurer declining to provide cover on the basis of late notification. When in doubt, notify.
Frequently Asked Questions
Q: The lawyer’s letter is addressed to my practice, not to me personally. Does it still apply to me?
Yes, if you were the treating practitioner. A letter addressed to the practice may name you individually, or may refer to treatment you provided even if not naming you directly. Notify your insurer regardless of whether the letter is addressed to you personally or to the practice entity.
Q: Can I write a private letter of apology to the patient?
Not without legal advice. In some circumstances, an appropriate expression of regret can help resolve a matter — but the wording matters enormously. An apology that goes further than appropriate can constitute an admission of liability. Speak to your insurer or lawyers before any communication with the patient or their legal representative.
Q: The letter asks me to provide records within 14 days. Must I comply?
A letter from a law firm requesting records is not legally binding without a court order (subpoena) or the patient’s written consent. Do not release records in response to a lawyer’s letter alone. Contact your insurer, who will advise on the appropriate response, including any records that should or should not be released.
Q: What if I think the claim has merit — should I just settle?
This is a decision for your insurer and lawyers, not for you alone. Even if you have concerns about aspects of the care provided, the decision about whether and how to resolve a claim involves legal, financial, and reputational considerations that require professional assessment. Notify your insurer, cooperate with the process, and let the experts guide the strategy.
Q: Will a legal claim affect my AHPRA registration?
A civil claim for medical negligence does not automatically trigger an AHPRA notification or investigation. However, if the facts underlying the claim are serious enough to raise questions about your fitness to practise, a notification may follow — either from the patient, from the court, or from another practitioner. Your insurer can advise on whether an AHPRA notification is likely and how to manage it.
