THE PRE-ACTION PROTOCOL FOR THE RESOLUTION OF CLINICAL DISPUTES
Lucy Squire reviews the clinical negligence protocol
The Pre-Action Protocol for the Resolution of Clinical Disputes was instigated by the Clinical Disputes Forum, a multi-disciplinary body which was formed in 1997 following Lord Woolf’s groundbreaking ‘Access to Justice’ Reforms.
The purpose of the Protocol is to encourage openness and provide general guidance on resolving clinical disputes to ensure parties are given sufficient information at an early stage to enable claims to be settled without resorting to Court action. This can lead to significant savings in delay and costs.
The Forum’s intention is to provide guidelines for the procedure to be followed when a medical dispute arises, amid a growing trend in clinical negligence claims against hospitals, GP's, dentists and other healthcare professionals. It is intended to be "a code of good practice" which parties should adopt when a dispute arises and provides a framework for pre-action conduct.
Non-compliance with the Protocol can lead to costs sanctions and therefore the importance of the Protocol should not be underestimated.
It is helpful for clinical negligence clients as well as their solicitors to understand how the protocol operate to ensure legal costs are reduced, delays are avoided and ultimately, that litigation is used as a last resort.
PRE-ACTION CORRESPONDENCE
Once the Claimant considers there are reasonable grounds for making a clinical negligence claim the Protocol requires them to send the Defendant healthcare provider a Letter of Claim “as soon as practicable”. The letter should provide a summary of the facts, the main allegations of negligence, state the injuries the Claimant has sustained and provide details of their condition and prognosis together with information regarding any financial loss they have suffered as a result of the alleged negligence.
The purpose of the Letter of Claim is to give the Defendant sufficient information to allow them to investigate the negligence claim and identify the potential value of the claim in terms of compensation.
The Defendant should acknowledge the Letter of Claim within 14 days and will then have four months to investigate the clinical negligence claim. At the end of this period, they must provide a Letter of Response. This should specify whether liability is admitted in full, in part or denied together, with their reasons for the same.
Pre-action correspondence is therefore intended to promote a ‘cards on the table’ approach to litigation, which encourages parties to settle at an early stage.
OBTAINING MEDICAL RECORDS:
Medical records must be requested using a standard form and disclosed within 40 days. If this time limit is not adhered to, the requesting party may make an application to the court for pre-action disclosure The Court has the discretion to award costs against the defaulting party for non-compliance. Provision has also been made for photocopying and postage costs, which are charged in accordance with the Access to Health Records Act 1990.
By controlling not only how requests are made, but also the time and expenses involved in obtaining records, the Protocol ensures that costs are reduced and delays are avoided.
EXPERTS
The Protocol recognises that in clinical negligence claims expert evidence may be required to deal with breach of duty and causation and/or the Claimant’s condition and prognosis, or even to support the level of compensation being claimed.
Due to the complex nature of clinical negligence claims it is not always clear at the outset what medical evidence will be required. The Protocol therefore does not attempt to impose restrictions or guidance on obtaining expert evidence.
The flexibility of this approach allows the parties to decide what experts are appropriate and consider whether their instruction should be joint, taking into account the costs involved.
ALTERNATIVE DISPUTE RESOLUTION
The Clinical Negligence Protocol requires parties to consider whether alternative dispute resolution (ADR) may be utilised in order to avoid litigation. This includes, but is not limited to, negotiation, early neutral evaluation and mediation. As with most types of litigation, the Court will look at evidence of whether ADR was considered and may apply costs sanctions for non compliance.
NHS COMPLAINTS PROCEDURE
For patients who feel that the health provider has been negligent, but either do not want to seek compensation, or have not suffered a loss as a result of the alleged negligence, it may be appropriate to follow the NHS Complaints Procedure. This is intended to ensure patients are given an explanation of why the care they have received has resulted in a particular outcome. Whilst patients cannot be compensated under this procedure, for some people a simple explanation and an apology is sufficient recompense.
Similarly, this procedure is also helpful for people planning to make a clinical negligence claim who are seeking to obtain further information on the care they have received to allow them decide whether legal action is necessary.
For further details on the NHS Complaints Procedure and for assistance on pursuing this course of action, patients and potential Claimants should visit the Patient Advice and Liaison Service (PALS) on www.pals.nhs.uk
