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Amended pre-action protocol for clinical negligence cases

  • complaints about medical care
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    A blog setting out the protocol that should be followed in clinical negligence cases before starting Court proceedings and considering the impact of some recent amendments.

    By Kerstin Kubiak

All Claimants who wish to pursue a claim for compensation for injuries suffered as a result of clinical/medical negligence are expected to follow a protocol of steps prior to issuing Court proceedings.  This is the Pre-Action Protocol for the Resolution of Clinical Disputes (the Protocol) and applies to claims involving treatment in hospitals (NHS and private), GP treatment, dental treatment and generally any treatment in a healthcare setting.  Amendments to the protocol came into force on 6th April 2015.  The changes include earlier formal notification to healthcare providers of a likely claim which I discuss further below.

Aims of the Protocol:

The general aims of the Protocol are stated to be:

  • to maintain and/or restore the patient/healthcare provider relationship in an open and transparent way;
  • To reduce delay and ensure costs are proportionate; and
  • To resolve as many disputes as possible without litigation (Court proceedings).

The stages of the Protocol:

A summary of the steps that should be taken before issuing Court proceedings:

1. Obtaining copy medical records.  When writing to request copies of the Claimant’s medical records from the potential Defendant they should be put on notice of the potential claim.  The records should be provided within 40 days and then need to be reviewed and analysed.

2. In many cases the Claimant will then need to obtain advice from one of more medical experts.  As I explained in an earlier blog, in order to pursue a claim a Claimant needs to prove both that he medical treatment that they received was below an acceptable standard of care (breach of duty of care) and also that the negligent treatment caused or contributed to them suffering injury which would otherwise have been avoided (causation).  A Claimant may therefore need evidence from one of more experts in order to ascertain if they can pursue a claim.

3. Letter of notification.  This is a new stage which I discuss further below.  The amended protocol states that “The Letter of Notification should advise the Defendant that this is a claim where a Letter of Claim is likely to be sent because a case as to breach of duty and/or causation has been identified.”  A copy of this letter should also be sent to the relevant defence organisation.  In cases involving NHS hospitals this is usually the NHS Litigation Authority (NHSLA).

4. Letter of Claim.  Once a Claimant has completed their investigations and these confirm grounds for a claim (so there is evidence both of negligent care and that this has caused the Claimant injury), then they should send a formal Letter of Claim.  This Letter of Claim should contain:

  • A clear summary of the facts.
  • The main allegations of negligence.
  • A description of the Claimant’s injuries and prognosis.
  • An outline of the likely financial losses to be claimed.

As with the Letter of Notification, the Letter of Claim should also be sent to the relevant defence organisation.

5. The Defendant then has a period of up to 4 months to investigate the claim and provide a formal Letter of Response either admitting the claim in whole or part, or denying the claim.  If the Defendant denies the claim then they must give specific comments on the allegations and provide copies of any additional documents they rely on.

6. If the claim has been admitted then the parties can explore whether the claim can be settled.  If the claim has been denied then the parties will need to consider starting Court proceedings to resolve the issues of liability.

New ‘Letter of Notification’

Before the amendments of April 2015 it was often the case that investigations into potential clinical negligence claims could take some time before the Claimant was in a position to send a Letter of Claim due to the need to obtain expert evidence and the usual waiting list for experts.  While Defendants are notified of a potential claim when the Claimant’s medical records are requested they often do not start investigating the issues until receiving a formal Letter of Claim.  What then often occurs after sending a Letter of Claim is that the Defendant will be unable to complete their investigations within the 4 months allowed under the Protocol and will request additional time, sometimes several months, causing a delay in the Claim being progressed. This naturally causes frustration to Claimants.

The amended Protocol includes that a Claimant may wish to send a Letter of Notification to the Defendant following initial investigations, particularly if they have obtained expert evidence which identifies a case on breach of duty (negligence) and/or causation.  It may be that the Claimant will then have to await further expert evidence to prepare a Letter of Claim, but they can give the Defendant an early indication of the allegations.

The Protocol states that following receipt of a Letter of Notification the Defendant should:

  • acknowledge the letter within 14 days;
  • identify who will be dealing with the matter;
  • consider whether to commence investigations and/or to obtain factual and expert evidence;
  • consider whether any information could be passed to the claimant which might narrow the issues in dispute or lead to an early resolution of the claim; and
  • forward a copy of the Letter of Notification to the NHSLA or other relevant  medical defence organisation/indemnity provider.

It is not mandatory to send a Letter of Notification but there are cases when it will be beneficial to do so if for example the Claimant will have to wait some time for additional expert evidence before a formal Letter of Claim can be sent.

Defendants will have to consider very carefully starting investigations once they receive a Letter of Notification as the amended Protocol also states that it will not be looked on favourably if the Defendant does not start investigations at this point and then requests more than the allowed 4 month period to investigate the claim once they receive a Letter of Claim.

While these amendments have unfortunately not been widely published, I hope that the amendments, particularly the addition of the Letter of Notification, will ensure earlier investigations of Claims by Defendants and in turn reduce delays in progressing such claims, which will benefit both parties.

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