An injured Claimant bringing a medical negligence claim must adhere to the “Pre-Action Protocol for the Resolution of Clinical Disputes”.
The Protocol encourage early exchange of information and the primary goal is to avoid litigation, if at all possible. The Protocol is regarded as a fair and transparent process allowing the Defendant (the potentially negligent party) the chance to respond before they face Court Proceedings.
If the Defendant denies the claim, and refuses to pay compensation, then the injured Claimant will need to proceed with Court Proceedings but is still nonetheless required to comply with the Protocol otherwise they will be consequences (step 11 below).
11 Key Elements to the Clinical Negligence Protocol
1. A Letter of Notification should be sent as soon as possible after a potential medical negligence claim is discovered. The Letter of Notification gives the Defendant (who the claim is against) a ‘heads up’ that the Claimant is likely to bring a claim. It just needs to be brief, no allegations are necessary in this letter.
2. The Defendant then has 14 days to acknowledge the Letter of Notification and confirm where the Letter of Claim should be sent. For example, the Defendant’s insurers may wish to receive the Letter of Claim or, for doctors, the NHS Resolution (NHSR) may need to receive it.
3. The Letter of Claim is normally prepared by the Claimant’s solicitors after full analysis of the medical records and after expert evidence has been obtained. The Letter of Claim sets out the details of the Claimant including: age, job (if any), address, nature of the injury, allegations of negligence and it should identify what the Claimant is looking to recover as part of the claim – i.e. loss of earnings or psychiatric treatment etc.
4. Generally, the Letter of Claim should propose “Alternative Dispute Resolution” including mediation to try and resolve the claim (see step 8).
5. The Defendant or their representatives should acknowledge the Letter of Claim within 14 days.
6. In terms of the timeframe to provide a Letter of Response, which responds directly to the Letter of Claim, the Defendant (the person/hospital/company facing the claim) has 4 months to respond. The Letter of Response must state if the allegations of negligence are accepted or denied, and, importantly, why. Blanket denials, without reasons, are not allowed.
7. The Defendant or their representatives may seek an extension of time for the Letter of Response and adequate reasons must be provided, such as whether the timeframe for obtaining expert evidence is likely to take longer than 4 months, or if it will take a long period to obtain any outstanding medical records. The Claimant does not have to agree but unreasonably refusing extra time, if valid reasons are provided, may provoke criticism by the Judge at a later date, particularly when assessing legal costs.
8. The Defendant should respond to the Claimant’s proposal to hold Alternative Dispute Resolution, including mediation or a settlement meeting. Reasons should generally be provided if there is a refusal. Unreasonable refusal to engage in this, as an alternative to litigation, can bear cost consequences against the unreasonable party. There is growing pressure on solicitors to resolve claims in the “Pre-Action Protocol” period and it is often a good time to make settlement offers, so Claimants must make sure all relevant documents and evidence on loss of earnings (tax documents, pay slips etc) are provided to their solicitor early.
9. The Claimant is generally expected to wait for the Pre-Action Letter of Response before deciding whether to issue Court Proceedings, which incurs a substantial court fee. If that is not provided within 4 months, or is provided but the claim is denied (i.e. no settlement is offered), the Claimant can then, validly, issue Court proceedings.
10. The allegations in the Letter of Claim generally remain the same in the Particulars of Claim, which is the court document once Court Proceedings are issued, although the allegations can sometimes change. The allegations can be influenced by the content of the Letter of Response; sometimes allegations are abandoned, sometimes expanded on. However, the Claimant’s evidence (factual account of what happened) is expected to remain the same throughout otherwise concerns may be raised about the Claimant’s credibility. Whilst there is no “Statement of Truth” on the Letter of Claim, it must be carefully considered and approved by the Claimant to ensure that it is accurate/approved.
11. Claimants who do not abide by the Pre-Action Protocol and issue Court Proceedings are “jumping the gun” and likely to face severe criticism by the Defendant, also the judge and will be penalised in legal costs.
As Claimant medical negligence solicitors, with our head office in Harrogate, North Yorkshire and with virtual offices in York, Manchester and London, we would be pleased to confidentially discuss your potential clinical negligence claim with you. Usually we offer No Win, No Fee agreements for medical negligence claims. Your consultation with us is free and is of no obligation.