The Pre-Action Protocol for the Resolution of Clinical Disputes sets out a code of good practice which parties to a medical negligence dispute are expected to follow before court proceedings are issued. The Protocol encourages the parties to find the most appropriate way of resolving the dispute and seeks to reduce delay and costs and the need for court proceedings.
The Protocol applies to all claims against hospitals, GPs, dentists and other healthcare providers (both NHS and private) which involve an injury that is alleged to be the result of clinical negligence.
A claimant can commence court proceedings without complying with the Protocol if, by complying with it, his claim may be time-barred and/ or the patient’s position needs to be protected by early issue.
Where a claimant requests medical records, s/he should provide sufficient information to alert the healthcare provider where an adverse outcome has been serious or had serious consequences and be as specific as possible about the records required. The request should be made using the prescribed form annexed to the Protocol.
Third party healthcare providers are expected to co-operate in respect of any requests for copies of health records kept by them.
Copy records should ordinarily be provided within 40 days of a request. There are limits on the amount a healthcare provider can charge for providing copy records.
If a healthcare provider fails to provide the medical records within 40 days, the patient can apply to the court for an order for pre-action disclosure.
The claimant and the defendant should both consider as early as possible whether the claimant has reasonable needs that could be met by rehabilitation treatment or other measures. They should also discuss how these needs might be addressed.
The letter of claim
The patient is expected to notify the healthcare provider of his claim by sending a letter of claim before commencing court proceedings.
The letter of claim should contain:
- a clear summary of the facts on which the claim is based, including the alleged adverse outcome, and the main allegations of negligence;
- a description of the claimant’s injuries, and present condition and prognosis;
- an outline of the financial loss incurred by the claimant, with an indication of the heads of damage to be claimed and the scale of the loss, unless this is impracticable;
- confirmation of the method of funding; and
- the discipline of any expert from whom evidence has already been obtained.
Claimants are encouraged to use the template annexed to the Protocol.
Response to the letter of claim
The healthcare provider has 14 days from the date of receipt of the letter of claim to acknowledge receipt and identify who will be dealing with the matter.
The healthcare provider has three months from the date of the letter of claim to provide a reasoned answer.
If the claim is admitted, the healthcare provider should say so clearly. If only part of the claim is admitted, the healthcare provider must make it clear which issues are admitted, which are denied and why. Any admissions will be binding on the healthcare provider.
If the claim is denied, the healthcare provider should explain why and offer its own version of events.
If the healthcare provider relies on additional documentation it must provide copies.
If the patient has made an offer to settle, the healthcare provider should respond to that offer in the same letter, preferably with reasons.
The healthcare provider may make its own offer to settle at this stage. Any such offer should be accompanied by supporting medical evidence and/ or any other evidence relating to the value of the claim which the healthcare provider may possess.
Where the healthcare provider admits liability, the parties should aim to agree a reasonable period of time to resolve the value of the claim.
If expert evidence is required, it is for the parties to decide whether it is appropriate to jointly instruct an expert and whether reports are disclosed sequentially or by exchange.
Alternative dispute resolution (ADR)
The parties should consider ADR as an alternative to court proceedings. If the parties agree that ADR is suitable they should try to agree which form to adopt. The Protocol sets out some of the forms of ADR which the parties might adopt. This includes making a complaint under the NHS Complaints Procedure.
The court may require the parties to provide evidence that ADR was considered, but ADR is not compulsory.
Failure to act in accordance with the Protocol
When determining costs the curt will take into account the conduct of the parties including whether they have complied with the Protocol.
When considering compliance, the court will consider whether the parties have complied in substance; it is unlikely to be concerned with minor or technical shortcomings. The court will also consider the proportionality of the steps taken compared to the size and importance of the matter, the urgency of the matter and the effect of non-compliance on the other party.
A single minor breach by one party will not exempt the other party from following the Protocol.