The impact of Covid-19 has resulted in a new protocol for the handling of clinical negligence claims in England during the pandemic.

Why is the protocol necessary?

Clinical negligence claims require factual evidence from NHS staff and expert medical evidence in order to determine liability and the value of damages. The pandemic has put increased pressure on NHS staff and medical experts have been deployed to provide frontline clinical care. Many NHS and private hospital complaints processes have been suspended and internal investigations have been delayed. Many inquest hearings have been adjourned due to the government’s guidelines. As a result, there is a shortage of factual and expert witness experts from whom the parties can commission statements and reports and delays in the litigation process.

The new protocol has been agreed between the Society of Clinical Injury Lawyers (SCIL), NHS Resolution and the patient safety charity, Action against Medical Accidents (AvMA). Its key intentions are to encourage co-operation between parties, reduce the risk of unnecessary costs being incurred and to expedite the litigation process through the use of technology, where possible.

What are its key provisions?

  • Suspending the limitation period until 3 months after the end of the protocol;
  • Encouraging the use of electronic communication – service by email is the default position;
  • Encouraging the parties to adopt a reasonable approach to requests for interim payments of damages and costs and for extensions of time for letters of response and compliance with court directions;
  • Medical examinations, for the purpose of preparing expert evidence, to be conducted remotely, where possible;
  • Settlement meetings and mediations to be conducted remotely.

How long will the protocol remain in place?

The protocol took effect in August 2020 and will remain in place for the duration of the Covid-19 pandemic. It will be reviewed (and possibly altered) every 8 weeks. Any party wishing to terminate its participation in the protocol must give 4 weeks’ written notice.

Does the protocol apply to claims involving NHS Wales?

No – NHS Wales is not a signatory to the protocol, but the spirit of the protocol could be adopted by parties to a claim against NHS Wales.

For a full account of the Covid-19 Clinical Negligence Protocol (2020), please click here.

RELATED:   MEDICAL & CLINICAL NEGLIGENCE


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