The COVID-19 Clinical Negligence Protocol: A spirit of cooperation in troubling times
The global Coronavirus pandemic has had an unprecedented impact on the demands and needs of the healthcare system. The NHS has done a remarkable job reallocating resources to manage this crisis. An unintended, but unavoidable, consequence for some injured people has been a knock on delay in reaching a conclusion to their ongoing clinical negligence claim.
To ease the pressures and disruptions put on Claimant and Defendants alike who are involved in clinical negligence cases, the NHS Resolution, the Society of Clinical Injury Lawyers and Action Against Medical Accidents have agreed upon a new COVID-19 Clinical Negligence Protocol. This came into force on 14th August 2020. In this blog I will explore what the COVID-19 Clinical Negligence Protocol sets out to achieve and whether the recommendations help promote and encourage cooperation in practice.
The purpose of the COVID-19 Protocol
Against a backdrop of various ways Coronavirus can impact on the legal system, the Protocol has been developed with these challenges in mind. Essentially, its aim is to promote cooperation and ‘positive behaviours’ between parties. It aims to achieve this by designing methods to help reduce costs, prevent unnecessary applications to court and deter a need for delay.
Clinical negligence cases are, by their nature, heavily reliant on medical evidence. Medical reports are required for liability issues surrounding breach of duty and causation and then usually updated records are needed to consider the Claimant’s condition and prognosis. This evidence is provided by healthcare professionals, be they NHS or private Doctors, surgeons, nurses or GP’s. Coronavirus has impacted on the availability of medical records teams producing the injured person’s medical records. The NHS has had to reallocate resources to have more staff on the front lines to help combat and control the virus.
Our experience is that despite the need for NHS resources to be focused on tackling the virus, appointments with medical experts have for the most part remained unaffected. In fact, some experts have found they now have more time to assist with clinical negligence cases as their normal clinic workloads have been reduced. Additionally, most assessments are now completed virtually, which is not only safer, but has reduced waiting times for appointments with experts.
Areas addressed in the COVID-19 Clinical Negligence Protocol
The Protocol sets out ten areas where enhanced cooperation and a spirit of positive behaviour will assist to progress clinical negligence cases. Some of the most important areas addressed by the Protocol are considered further:
- Service and ongoing communication
- Medical examination
- Hearings and settlement meetings
Clinical negligence cases must be issued at court by a set date, known as the limitation date. When court proceedings are issued, at least one medical report must have already been obtained. There is the potential on some occasions that medical evidence and investigations by both Claimants and Defendants will take longer while Coronavirus impacts the medical profession.
Where written notice is given prior to the expiry of limitation, the Protocol provides that the unexpired limitation period is suspended from the date notice is given until three months after the Protocol comes to an end. The spirit of the Protocol can be seen in full – blanket stays to limitation allows for continued cooperation between the parties, without enforcing what in some cases may be unachievable deadlines. It also allows all parties, particularly from a Claimant perspective, to have sufficient time to obtain the evidence needed to understand the merits of the case. This policy will also shield the courts from being inundated with cases being issued protectively, solely because the limitation period is about to expire.
In practice, we have not yet seen the potential benefits of this policy. It may be that it is currently too early for these issues to have arisen. However, there are underlying concerns that this could be used by Defendants to delay carrying out their investigations and blaming this as a result of the pandemic, thereby causing a delay. Hopefully, practices such as this will not occur and instead we will see Defendants engage proactively with Claimants during the investigatory stages.
Service and Communication
Service of legal documents on another party are usually required by post, where service by email has not been accepted unless agreed in individual cases. The Protocol requires for service by email to be accepted as standard and can only be disallowed where there is a good reason for doing so. This is a welcome step of modernisation and should make service much quicker and simpler.
This is built upon a broader aim of achieving positive and constructive levels of communication between Claimant and Defendant solicitors. This has never been more important, particularly when more people work from home and offices are closed for an indefinite period.
The vast majority of medical examinations usually take place in person but due to Coronavirus, many appointments have been forced to take place virtually. The Protocol encourages this practice and states that Claimants should not be pressured to attend appointments in person. The ‘positive behaviour’ here is to put the injured person first ahead of the ongoing litigation. Many Claimants may be more susceptible and vulnerable to the virus because of their injuries. By encouraging all parties to allow virtual assessments we can ensure that, as far as possible, Claimants can stay safe and not be exposed to unnecessary risk. This is of particular importance for those who may be at a higher risk from the virus.
Hearings and Settlement meetings
The Protocol promotes and strongly encourages parties to work together to avoid unnecessary court hearings. This links back to strong levels of communication and a willingness to cooperate together. Like medical assessments, settlement meetings are strongly encouraged to be carried out virtually where possible. This avoids delaying the settlement opportunity but maintains safety for all parties.
This has been a very positive development and at Bolt Burdon Kemp, we have been involved in a number of successful settlement meetings conducted virtually. We are pleased that Defendants are also engaging in this practice, preventing any unwanted delays and delivering an outcome for our clients.
The COVID-19 Clinical Negligence Protocol is geared towards promoting a spirit of cooperation and good communication, with also a strong emphasis on avoiding unreasonable delay. It has been positive to see, as we have progressed through the pandemic, that claims may not have been affected as much as was initially feared. There is clearly a genuine desire for parties on all sides to work together.
The Protocol adds an additional level to this and specifically setting out to promote these behaviours helps to serve as a reminder that it is in everyone’s best interests to engage in the positive spirit of cooperation. Hopefully, this will continue well into the future.