Clinical Negligence Litigation: a positive outcome of Covid-19
It seems a long time ago now when we were subjected to the lockdowns and restrictions associated with the Coronavirus pandemic. The imposition of social distancing and the other strict rules had a significant impact upon the way in which litigators went about their business and of course the way in which the Court system managed the same. Almost overnight, hearings became remote, skill levels were increased through the use of Microsoft Teams and other platforms and the long journey to Counsel’s Chambers in London became a thing of the past. Many of these practices remain for the better. Indeed, a 4-day inquest of mine in May 2022 concluded successfully with 28 witnesses giving evidence remotely. The hearing passed without any technological glitch and ran very smoothly.
At an early stage in the pandemic, it became apparent to various interested parties in clinical negligence litigation that there needed to be an alteration of mindset in how claims were going to be run. The Society for Clinical Injury Lawyers (SCIL), the Patient Safety Charity, Action against Medical Accidents (AvMA) and NHS Resolution acting on behalf of the Local Health Boards in England, quickly set about drafting a Protocol for how these cases would be managed during the restrictive times of the pandemic.
As a result, a new Covid 19 Clinical Negligence Protocol was drafted and signed off by all interested parties which set about changing behaviours in relation to the management of clinical negligence litigation. The Protocol was wide-ranging. It covered such things as a moratorium on issuing proceedings, making use of email to serve and receive documents as being the default position, encouraging much more innovation for example in relation to online examinations of patients, encouraging more cooperation in the progress of claims to avoid unnecessary and costly Court hearings, with settlement meetings and mediations to take place remotely wherever possible. At its cornerstone was a greater degree of collaboration and co-operation between the parties to litigation.
There is no doubt the Protocol was seen as a very welcome development for all those involved and a very significant and brave step forward. It was hailed as good news for injured patients and altered the landscape of how these cases would be run.
In the last few days, a joint press release was put out by those original signatories to the Protocol, and it made very interesting and welcome reading. It highlighted the progress and costs savings that appear to have been achieved as a result of the COVID-19 Clinical Negligence Protocol, with the analysis of the data revealing a significant trend against costly and stressful litigation for all parties involved. The figures showed that there was a reduction of 572 litigated cases in the first year alone, at an average saving of £57,000 per case. The collaboration between all parties involved in the Protocol and the practitioners who were governed by its terms have helped to save approximately £32.6 million in clinical negligence legal costs in one year alone. The figures are eye-watering and clearly a very positive and welcome development.
It is excellent news for innocent injured parties whose claims have settled without the protracted stress of Court proceedings and also very good news for the taxpayer. Claimant lawyers in this area of law are often criticised for unnecessarily increasing the costs associated with this litigation. They have always opposed that argument, citing behaviours on the part of defendant representatives as being the main predicator in increasing the costs unnecessarily. The analysis of the Protocol data evidences that a more collaborative and less adversarial approach between the parties produces positive results,not least financial.
The Protocol remains in force and there is no reason to doubt that current exhibited behaviours will not continue.