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Protocol for a Pandemic – Implications for Clinical Negligence

26 August 2020


The Civil Procedure Rules Pre-Action Protocols have been in place for over 20 years and have done a great deal to increase cooperation between parties and enable claims to be resolved promptly where possible with costs and other consequences for failing to comply.  But we are now in unprecedented times. As recently as January 2020 the formulation of specific protocols to accommodate a pandemic were in their infancy.  Now we are awash with them.  A new addition, dated 14 August 2020 (COVID-19 Clinical Negligence Protocol: 2020) seeks to assist those legal practitioners in England working in the healthcare arena, and particularly those conducting clinical negligence disputes. The guiding principles are to deliver consistency in approach, demonstrate co-operation (claimants and defendants having similar challenges) and save costs.

The Context

The forerunners to this agreement include the PI Protocol (ABI + Thompsons and other firms) which concluded on 30 June 2020 and the APIL and FOIL Best Practice for Mutual Co-Operation approach. On the basis that clinical negligence sits within Personal Injury it might be queried why this specialty warrants a bespoke protocol.

The protocol explains:
  • Expert medical opinion is key to liability and quantum investigations
  • Many such experts have been deployed to treat patients on the front line
  • NHS staff have not been able to investigate complaints, produce Serious Incident Reports or witness statements in claims as all efforts are (rightly) directed to managing the pandemic response.

The Signatories

This is a voluntary protocol – so it does not bind parties unless and until they become a signatory to it.  More are invited to sign up but as at 21 August 2020 it is limited to the founding parties

NHSR- NHS Resolution and their instructed panel firms

SCIL- Society of Clinical Injury Lawyers and their members

AvMA – Action Against Medical Accidents and their members

The Content

  • Timing - unlike other voluntary protocols that stipulate a termination date this protocol remains in place until all signatories have given notice.
  • Review – at 8 weekly intervals the terms will be revisited to ensure ongoing applicability
  • Limitation - upon giving the requisite written notification, the running of the remaining unexpired limitation period is suspended, the 'clock' to commence ticking again 3 months after the protocol ends.
  • Extensions of time - in the protocol or litigation phases of a claim should be agreed where they are 'reasoned and reasonable'.
  • Communications - via telephone and emails (with appropriate encryption for data security) are to be the norm.
  • Service – via email is accepted for the duration of the protocol.
  • Medical examinations and settlement meetings – to be facilitated via remote means where possible.
  • Contested applications - to be avoided where possible, particularly where reasonable requests are made for interim damages or costs payments.

What does this mean for legal representatives?

Co-operation between legal representatives is not an alien concept, nor an approach that should have required a pandemic to engender, especially in this emotive field of practice.  However, the intensity of the COVID-19 experience for the NHS has driven the creation of this new voluntary protocol which recognises the importance for those within the NHS to perform their primary function, namely to deliver clinical care. The protocol provides time for everyone involved in potential/actual litigation, to consider their positions and re-focus on the key question that should be central to every dispute – namely how can it best be resolved? The aims are laudable, however, legal representatives will still need to take great care with potential areas of difficulty including:
  • multi-party claims (which so many clinical negligence claims are).  If some parties are signatories to this new protocol but others are not, then difficulties could arise via different limitation periods
  • management of client expectations as to time that will be required to achieve resolution
  • how to best progress matters where claimants have a limited life expectancy

What does this mean for funders of clinical negligence claims?

It remains to be seen whether medical malpractice insurers (either individually or via FOIL) or Medical Defence Organisations sign up to this protocol, especially as some may be uncomfortable with automatic extensions to limitation not suiting their strategy and tactics.  The implications for those that are/become parties to the protocol could include:
  • Delays in being able to assess prospects of success and accurately evaluate and reserve quantum and costs, especially in cases where experts are unavailable or the alleged injury is unsuitable for remote medical examination.  
  • A longer than expected shelf-life for notified claims. 
  • Potential costs savings, as a consequence of preventing unnecessary issuing of proceedings, applications and cost budgeting.
  • Opportunities for mutually advantageous commercial settlements in the shorter term.  In many instances it may well be right to await 'definitive' expert opinion and testing of evidence in conference. But in other matters a pragmatic approach, to bring matters to a conclusion, might be prudent.  

We will watch with interest the effectiveness of this protocol and if any revisions are made at the first 8 week review, recognising that such timing could coincide with a second spike of infection, triggering additional signatories.  

Further Reading