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New Pre-Action Protocol for the Resolution of Clinical Disputes

The new Pre-Action Protocol for the Resolution of Clinical Disputes came into effect on 6 April 2015. The purpose of the Protocol is to encourage early resolution of clinical negligence claims.

What is new?

Letter of Notification
The Protocol states that once a Claimant has reviewed the records and obtained an initial expert opinion, they can send a Letter of Notification to the Trust, which should also be sent to the NHSLA.

Once a Trust or the NHSLA have received the Letter of Notification, they should:

(a)   acknowledge the letter within 14 days of receipt;

(b)   identify who will be dealing with the matter and to whom any Letter of Claim should be sent;

(c)   consider whether to commence investigations and/or to obtain factual and expert evidence;

(d)   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

(e)   forward a copy of the Letter of Notification to the NHSLA or other relevant  medical defence organisation/indemnity provider.

It should be noted that a Court may not look favourably at any requests for an extension of time if no action is taken following receipt of the Letter of Notification.

Letters of Claim and Letters of Response
Any Letters of Claim sent by a Claimant must now be copied to the NHSLA, as well as the Trust.

Proceedings should not be issued until four months after the Letter of Claim; but if this is not possible, the Protocol suggests that parties should agree a stay to enable the Trust’s investigations to continue.

The Protocol states that if the Letter of Response rejects the claim, information regarding the disciplines of expert relied upon and whether these relate to breach and/or causation should be provided to the Claimant.

A Defendant is encouraged to make an early apology, if appropriate.

Extensions of time
If a Trust requests an extension for service of the Letter of Response, the Protocol states that this request should be made as soon as the Trust becomes aware that it will be required and in any event within 4 months of receipt of the Letter of Claim.

The Protocol states that a Claimant should adopt a reasonable approach to any request for an extension of time for provision of the Trusts reasoned answer.

Requests for Medical Records
The new Protocol suggests that, once received, the Claimant should place records in an indexed and paginated bundle as soon as possible and presumably share this with the Defendant on request.

The new Protocol does not contain as much detail as the old Protocol for obtaining hospital medical records. The Consent Form for obtaining health records is also considerably shorter than previously; not requiring information such as the Claimant’s address at the time of the treatment, National Insurance number or reasons for the application/ likely claim.

Litigants in Person
The Protocol states that Litigants in Person should comply with the terms of the Protocol as far as is reasonably practicable.

It places an obligation on the Trust or NHSLA to send a copy of the Protocol to the Litigant in Person at the earliest opportunity. If a Trust becomes aware that a Claimant is not legally represented, they should ensure that a copy of the Protocol is sent to them and advise them that they are expected to comply with it.

One of the main changes to the new Protocol is the recommendation that, where the suggested pre-action steps have not resulted in settlement, the parties should undertake a ‘stock take’ exercise so that, at the very least, issues which are put before the court have been narrowed so far as possible prior to the issue of proceedings.

Parties are now expected to agree a chronology of events and the facts or issues that are agreed or disputed.

Offers to settle
The Protocol suggests that parties should consider making Part 36 Offers and ADR suggestions in their Letters of Claim and Letters of Response. Notably, if an offer to settle is made by the Claimant, this should “generally” be supported by a medical report on condition/prognosis, a schedule of loss and supporting documentation.

ADR and costs penalties
The Protocol places a real emphasis on Alternative Dispute Resolution (ADR) and requires the parties to undertake prescribed pre-action steps which are designed to facilitate settlement (failing which costs sanctions may be imposed by the courts), so that court proceedings should be a last resort for the resolution of clinical disputes. Any refusal to consider and respond to a request for ADR could lead to costs sanctions.

How can I find out more about this?
For further information on the new Pre-Action Protocol, please get in touch.

Please note that this briefing is designed to be informative, not advisory and represents our understanding of English law and practice as at the date indicated. We would always recommend that you should seek specific guidance on any particular legal issue.

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