The Clinical Negligence Protocol

The Pre-Action Protocol for the Resolution of Clinical Disputes encourages a climate of openness when something has gone wrong with a patient’s treatment.

It ensures all parties are given enough information at an early stage to allow for early resolution of medical negligence disputes.

The pre-action protocol includes:

• A code of good practice that all parties involved in a claim should follow before court action
• A timed sequence of events that all parties are expected to follow

When pursuing a claim in clinical negligence, the protocol sets out the following steps which should be followed:

1. Medical records are requested from the healthcare professional.
2. The healthcare professional has 40 days to send the requested records from receipt of the request.
3. The Letter of Claim is prepared and issued to the defendant Trust
4. The healthcare professional has 21 days to acknowledge the Letter of Claim.
5. Dispute Resolution should take place.
6. Court proceedings are issued

Preliminary Notice

As soon as there is a reasonable chance that a claim will be brought against a healthcare professional, the claimant is encouraged to notify the professional in writing. This letter, also known as the “Letter of Notification” or “Preliminary Notice” should contain the following information:

1. The identity of the claimant and any other parties;
2. A brief outline of the claimant’s claim against the professional;
3. A general indication of the financial value of the potential claim if possible

The letter should be addressed to the medical professional and should ask them to inform his professional indemnity insurers, if any, immediately.

An acknowledgment to the letter should be provided within 21 days of receipt.

Requesting Medical Records

When a claim in medical negligence is being considered, the request for medical records takes a standard form and will alert the healthcare professional that investigations are taking place.

The Letter of Claim

As soon as grounds for a claim is established, following investigation and receipt of supportive medical expert evidence, a Letter of Claim will be prepared and sent to the professional. This will notify the healthcare professional of the details of the claim. The letter will need to include a summary of the facts, allegations of breach of duty and negligence, injuries suffered and, if quantifiable at this stage, any financial loss.

Sufficient information must be included so that a healthcare professional has all the facts to commence their own investigations.

The Response

1. A Letter of Acknowledgment should be provided within 21 days of receipt. The professional will then have three months from the date of the Letter of Acknowledgment to investigate and respond to the Letter of Claim by provision of a Letter of Response.

Any response should set out what part of the claim is admitted (if any), or what is disputed. Where a claim is disputed, the healthcare professional should set out their reasons in detail.

At this point, the healthcare professional may make an offer to settle the claim.

Alternative Dispute Resolution

The parties should try to resolve the dispute prior to any issue of court proceedings. This will help save time and costs associated with bringing a court claim.

Alternative Dispute Resolution can be in the form of informal discussions or negotiations, or more formal methods such as mediation and arbitration.

The court will want to see that parties have attempted to settle and resolve things outside of court prior to issuing court proceedings.

Alternative Dispute Resolution is not mandatory, but a party’s refusal to engage or silence in response to an invitation to participate in ADR might be considered unreasonable by the court and could lead to the court ordering that party to pay additional costs.

Issuing Court Proceedings

If the parties cannot come to an agreement, then court proceedings will be issued. This should not be within four months of sending a Letter of Claim so that both parties have had enough time to try and resolve the matter or reach a settlement agreement.

Even after court proceedings have been issued, the court will expect the parties to continue to try to settle matter at every opportunity prior to the trial date. Where the procedure set out in this protocol has not resolved the dispute between the parties, they should undertake a further review of their respective positions. The parties should consider the state of the papers and the evidence in order to see if proceedings can be avoided and, at the least, narrow the issues between them.