Coronavirus clinical negligence claims protocol hailed

Date published:

Interested parties in the management of clinical negligence claims during the current, ongoing coronavirus situation have hailed a welcome, new protocol for handling claims at this time.

The patient safety charity Action against Medical Accidents (AvMA), NHS Resolution which handles all claims against the NHS in England now including GPs, and the Society of Clinical Injury Lawyers (SCIL) have signed up to a new protocol to better manage claims during the ongoing coronavirus situation.

The protocol is wide-ranging, covering:

  •  moratoriums upon limitation until 3 months after the protocol ends;
  • making use of email to serve and receive documents the default position;
  • encouraging much more innovation for example  on-line examinations of clients for medical expert reports;
  • encouraging more co-operation in the progress of claims, and in particular interim payments of damages and costs to avoid unnecessary court hearings;
  • settlement meetings and mediations to take place remotely wherever possible;
  • consideration of whether costs budgeting needs to take place initially or can be requested to be adjourned in order to save court and other resources.

Of particular note, and in contrast to other claims protocols to cover the current situation, is that the agreement continues in place indefinitely, until one of the parties gives notice to end it.  The provisions are also subject to review, and possible refinement, every 8 weeks to continue to respond to the challenges of the current situation.

It is hoped that the protocol will now also be adopted by other representative and medical indemnity organisations.

Peter Walsh, Chief Executive of AvMA said: “On behalf of people affected by avoidable harm in healthcare we welcome this protocol, which should provide assurance to those with a potential clinical negligence claim whilst also acknowledging the severe pressure which the NHS are under as a result of the pandemic.”

Simon Hammond, Director of Claims Management at NHS Resolution said: “The protocol provides some certainty to those who are handling clinical negligence work, while balancing the need to protect frontline staff’s time during the pandemic and recovery period. It shows how the industry is working collaboratively to find solutions around any challenges and it is hoped such collaboration continues post the termination of the protocol.”

Paul Rumley, Chairman of SCIL said:  “ This is a very welcome development for everyone involved in clinical negligence claims, and shows what all parties involved in this area of law can do when they collaborate together.  It is an ambitious protocol, and reflects many weeks of hard work and necessary compromise by everyone involved in it.  Particularly useful, is the moratorium upon limitation to save unnecessary work and costs issuing cases which are simply not ready to proceed during this time, and equally the explicit acknowledgement echoing the calls of the Lord Chancellor and Lord Chief Justice at this time that claims do still need to progress even though all parties face challenges in doing so at this time.

“The protocol is a brave and significant step forward, continuing as it does to be applicable unless or until it is ended by one of the parties, instead of having to be renewed every few weeks as is the case with the other injury protocols agreed at this time.  It is good news first and foremost for injured patients who wish to progress their claims at this time, and also for the Claimant and Defendant lawyers alike involved in these claims.  It can, and will be refined, on an ongoing basis to continue to respond to the challenges posed by the ongoing coronavirus situation.”