Which pre-action protocol applies in clinical negligence cases?
PAP for the Resolution of Clinical Disputes and associated Practice Directions setting out what is expected of parties.
When does the PAP expect the medical records to be shared?
Before the Letter of Claim is sent - allows investigation and claimant to instruct expert(s) to assess claim
The defendants in clinical negligence cases can include?
- NHS Trusts (CNST)
- GP Practices (CNSGP)
- Private hospitals and clinics
Clarify if an individual
Under which legislation can living individuals access their health records?
Data Protection Act and General Data Protection Regulations (GDPR)
Who can request the records of a deceased person and under what legislation?
A personal representative of the deceased or a person who may have a claim arising out out of the death. Under the Access to Health Records Act 1990
What should a request for records include under the PAP?
- Sufficient information to alert the defendant to a serious adverse outcome and/ or notifiable patient safety incident.
- Be specific about records required
- Request PPGs/ any documents created in relation to an adverse incident or NSI.
- Use Law Society Form
How long does the defendant have to provide the records?
40 Days - no charges since GDPR 2016
What is the penalty for non disclosure within the timeframe?
Court order for pre-action disclosure and potential costs sanctions.
How long does a defendant have to respond to a Letter of Notification (giving early notification)?
Must be acknowledged within 14 days. A copy should be sent to NHSR.
What 6 types of documents should be included in maternity health records?
- Progress of labour cards
- Partogram showing labour in chart form
- CTG traces showing foetal contractions
- Ante-natal records
- Neo-natal records
- Paediatric notes
What should a Letter of Claim include to be compliant with PAP?
- a clear summary of the facts
- the main allegations of negligence/breach of duty and an outline of the causal link
What initial steps under the PAP should a defendant take on receipt of Letter of Notification?
- Acknowledge within 14 days
- Consider whether to begin investigations and/or to obtain factual and expert evidence?
- Can any information be passed to claimant to narrow the issues or allow early resolution
- Send a copy to NHSR
Recommended contents of Letter of Claim (not binding in respect of Particulars of Claim)
- Clear summary of the facts on which the claim is based including alleged adverse outcome and main allegations of negligence
- Description of the claimants injuries, present condition and prognosis
- Outline of the financial loss incurred by the claimant with an indication of the heads of damage to be claimed and scale of the loss (unless impracticable)
- The discipline of any expert from whom evidence has been obtained.
- Refer to any documents and include copies of any which might not be available to the defendant
- Sufficient information to enable defendant to focus investigation and put an initial value on claim
- Consider making an offer to settle - should be supported by a medical report.
How long does a defendant have to respond to a Letter of Claim?
Must acknowledge within 14 days identifying who will be dealing with the matter AND must provide a full Letter of Response within 4 months.
What should a Letter of Response contain?
- State whether the claim is admitted
- If only in part, make clear which breaches of duty and /or causation is admitted and which are denied and why?
- If claim denied, include specific comments on the allegations of negligence and if a timeline has been provided and is disputed, provide the defendants version of the facts.
- If supportive evidence has been obtained, identify the disciplines relied upon and whether they relate to breach and/or causation.
- State whether defendant requires copies of any relevant medical records obtained by claimant.
- Provide copies of any additional documents relied upon.
- Inform the claimant of any other potential defendants to the claim.
- Respond to any offer to settle in LoC and consider whether to make an offer to settle at this stage, providing sufficient medical/other evidence to allow the claimant to evaluate the offer.
What role can experts play in clinical negligence cases?
- Breach of duty and/or causation
- Condition and prognosis
- Valuing the claim - quantum
Parties should cooperate on when making decisions on experts specialism and whether experts can be jointly instructed. Consider sharing any pre-action reports. Expert evidence on=obtained in the pre-action phase will only be permitted in proceedings if the court allows it.
Options for resolving disputes without formal proceedings?
- Discussion and negotiation (may include Part 36 offer and / or providing explanation and apology).
- Mediation (a third party facilitating a resolution)
/ other forms of ADR - arbitration (third party deciding the dispute)
- Early neutral evaluation (third party giving an informed opinion on the dispute_
- Ombudsmen services
Note: if proceedings are issued, parties may be required to demonstrate that ADR was considered (parties cannot be forced)
If dispute cannot be resolved in the PAP phase
Continue to cooperate and prepare a chronology of events which identifies what is agreed and what remains in dispute. Agree necessary procedural directions for efficient case management during proceedings.
When can the Claim Form and Particulars of Claim be served?
Must be served within 4 month so court issue date (should not be served until 4 months after Letter of Claim)
