The Pre-Action Protocol for the Resolution of Clinical Disputes sets out details as to what a letter of claim for a medical negligence claim, or a clinical dispute, should contain.
The Protocol applies to all medical negligence claims and clinical disputes. It applies to all aspects of the health service, both primary and secondary, and applies to both the public and private sectors.
A Claimant is, however, allowed to commence Court proceedings without complying with the Protocol if, by reason of complying with it, his claim may be time-barred and/ or the patient’s position needs to be protected by early issue.
What are the requirements of the Protocol?
Claimants are encouraged to use the template letter of claim which is annexed to the Protocol. In any event, the letter of claim should contain sufficient information to enable the healthcare provider to investigate the claim and put an initial valuation on the claim. Specifically the letter of claim should include the following information:
Information about the Claimant
The letter of claim should state the full name and address of the Claimant and his date of birth.
The facts of the case
The letter of claim should contain a clear summary of the facts and events giving rise to the claim including the alleged adverse outcome of the medical treatment and the date or dates of the allegedly negligent treatment. It should give an outline of what happened and, where relevant, it should provide details of any relevant treatments given to the patient by other healthcare providers.
In complex cases a chronology of the relevant events should be provided. This is particularly the case where a patient has been treated by more than one healthcare provider.
The basis of the claim
The letter of claim should set out the main allegations of negligence and how it is alleged the healthcare provider caused the injuries suffered by the patient. In a complex case a detailed list should be provided.
The patient’s injuries
The letter of claim should describe the injuries suffered by the patient and present condition and prognosis.
Financial loss suffered
Where the patient has suffered financial loss, such loss should be set out in the letter of claim. In doing to the heads of damage claimed should be indicated as should the scale of the loss, unless it is not practicable to do so.
Investigations carried out
The letter of claim should state what investigations have been carried out to date. This may include the making of a complaint, the obtaining of witness or expert evidence or medical records.
The letter of claim should refer to any relevant documents, such as medical records. Ordinarily copies of those which the proposed Defendant does not already have should be provided.
Request for medical records
If medical records have not previously been provided a request for such records should accompany the letter of claim. There is a prescribed form for requesting medical records. Where a request is made the records required should be specified and if other relevant records are held by other healthcare providers this should be indicated. Where medical records are requested by the patient’s adviser the patient’s authorisation will be required.
Offers to settle
Patients and their advisers are encouraged to put forward an offer to settle at an early stage. Where an offer to settle is made it should normally, although this is not essential, be supported by a medical report detailing the injuries, condition and prognosis and a schedule of loss supported by documentation.
The letter of claim may contain suggestions for obtaining expert evidence. If expert evidence has already been obtained it may be appropriate to send a copy of the expert’s report with the letter of claim.
Alternative dispute resolution
The letter of claim may contain suggestions for meetings, negotiations, discussion or mediation.