PRE-ACTION PROTOCOL FOR THE RESOLUTION OF CLINICAL
DISPUTES
CLINICAL DISPUTES FORUM
1 |
The Clinical Disputes Forum is a multi-disciplinary body
which was formed in 1997, as a result of Lord Woolf’s ‘Access to
Justice’ inquiry. One of the aims of the Forum is to find less
adversarial and more cost-effective ways of resolving disputes about healthcare
and medical treatment. The names and addresses of the Chairman and Secretary of
the Forum can be found at Annex E.
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2 |
This protocol is the Forum’s first major
initiative. It has been drawn up carefully, including extensive consultations
with most of the key stakeholders in the medico-legal system.
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3 |
The protocol –
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encourages a climate of openness
when something has ‘gone
wrong’ with a patient’s treatment or the patient is dissatisfied
with that treatment and/or the outcome. This reflects the new and developing
requirements for clinical governance within healthcare;
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provides general guidance on how this
more open culture might be achieved when disputes arise;
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recommends a timed sequence of steps
for patients and healthcare providers, and their advisers, to follow when a
dispute arises. This should facilitate and speed up exchanging relevant
information and increase the prospects that disputes can be resolved without
resort to legal action.
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4 |
This protocol has been prepared by a working party of the
Clinical Disputes Forum. It has the support of the Lord Chancellor’s
Department, the Department of Health and NHS Executive, the Law Society, the
Legal Aid Board and many other key organisations.
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MISTRUST IN HEALTHCARE DISPUTES
1.1 |
The number of complaints and claims against hospitals,
GPs, dentists and private healthcare providers is growing as patients become
more prepared to question the treatment they are given, to seek explanations of
what happened, and to seek appropriate redress. Patients may require further
treatment, an apology, assurances about future action, or compensation. These
trends are unlikely to change. The Patients’ Charter encourages patients
to have high expectations, and a revised NHS Complaints Procedure was
implemented in 1996. The civil justice reforms and new Rules of Court should
make litigation quicker, more user friendly and less expensive.
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1.2 |
It is clearly in the interests of patients, healthcare
professionals and providers that patients’ concerns, complaints and
claims arising from their treatment are resolved as quickly, efficiently and
professionally as possible. A climate of mistrust and lack of openness can
seriously damage the patient/clinician relationship, unnecessarily prolong
disputes (especially litigation), and reduce the resources available for
treating patients. It may also cause additional work for, and lower the morale
of, healthcare professionals.
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1.3 |
At present there is often mistrust by both sides. This
can mean that patients fail to raise their concerns with the healthcare
provider as early as possible. Sometimes patients may pursue a complaint or
claim which has little merit, due to a lack of sufficient information and
understanding. It can also mean that patients become reluctant, once advice has
been taken on a potential claim, to disclose sufficient information to enable
the provider to investigate that claim efficiently and, where appropriate,
resolve it.
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1.4 |
On the side of the healthcare provider this mistrust
can be shown in a reluctance to be honest with patients, a failure to provide
prompt clear explanations, especially of adverse outcomes (whether or not there
may have been negligence) and a tendency to ‘close ranks’ once a
claim is made.
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WHAT NEEDS TO CHANGE
1.5 |
If that mistrust is to be removed, and a more
co-operative culture is to develop –
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healthcare professionals and providers need to
adopt a constructive approach to complaints and claims. They should accept that
concerned patients are entitled to an explanation and an apology, if warranted,
and to appropriate redress in the event of negligence. An overly defensive
approach is not in the long-term interest of their main goal: patient
care;
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patients should recognise that unintended and/or
unfortunate consequences of medical treatment can only be rectified if they are
brought to the attention of the healthcare provider as soon as possible.
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1.6 |
A protocol which sets out ‘ground rules’
for the handling of disputes at their early stages should, if it is to be
subscribed to, and followed –
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encourage greater openness between the
parties;
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encourage parties to find the most appropriate
way of resolving the particular dispute;
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reduce delay and costs;
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reduce the need for litigation.
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WHY THIS PROTOCOL NOW?
1.7 |
Lord Woolf in his Access to Justice Report in July
1996, concluded that major causes of costs and delay in medical negligence
litigation occur at the pre-action stage. He recommended that patients and
their advisers, and healthcare providers, should work more closely together to
try to resolve disputes co-operatively, rather than proceed to litigation. He
specifically recommended a pre-action protocol for medical negligence
cases.
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1.8 |
A fuller summary of Lord Woolf’s recommendations
is at Annex D.
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WHERE THE PROTOCOL FITS IN
1.9 |
Protocols serve the needs of litigation and
pre-litigation practice, especially –
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predictability in the time needed for steps
pre-proceedings;
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standardisation of relevant information,
including records and documents to be disclosed.
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1.10 |
Building upon Lord Woolf’s recommendations, the
Lord Chancellor’s Department is now promoting the adoption of protocols
in specific areas, including medical negligence.
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1.11 |
It is recognised that contexts differ significantly.
For example: patients tend to have an ongoing relationship with a GP, more so
than with a hospital; clinical staff in the National Health Service are often
employees, while those in the private sector may be contractors; providing
records quickly may be relatively easy for GPs and dentists, but can be a
complicated procedure in a large multi-department hospital. The protocol which
follows is intended to be sufficiently broadly based, and flexible, to apply to
all aspects of the health service: primary and secondary; public and private
sectors.
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ENFORCEMENT OF THE PROTOCOL AND SANCTIONS
1.12 |
The civil justice reforms will be implemented in April
1999. One new set of Court Rules and procedures is replacing the existing rules
for both the High Court and county courts. This and the personal injury
protocol are being published with the Rules, practice directions and key court
forms. The courts will be able to treat the standards set in protocols as the
normal reasonable approach to pre-action conduct.
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1.13 |
If proceedings are issued it will be for the court to
decide whether non-compliance with a protocol should merit sanctions. Guidance
on the court’s likely approach will be given from time to time in
practice directions.
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1.14 |
If the court has to consider the question of compliance
after proceedings have begun it will not be concerned with minor infringements,
e.g. failure by a short period to provide relevant information. One minor
breach will not entitle the ‘innocent’ party to abandon following
the protocol. The court will look at the effect of non-compliance on the other
party when deciding whether to impose sanctions.
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2 |
THE AIMS OF THE PROTOCOL
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2.1 |
The
general
aims of the
protocol are –
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to maintain/restore the patient/healthcare provider
relationship;
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to resolve as many disputes as possible without
litigation.
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2.2 |
The
specific
objectives are
–
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to encourage early communication of the perceived
problem between patients and healthcare providers;
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to encourage patients to voice any concerns or
dissatisfaction with their treatment as soon as practicable;
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to encourage healthcare providers to develop
systems of early reporting and investigation for serious adverse treatment
outcomes and to provide full and prompt explanations to dissatisfied
patients;
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to ensure that sufficient
information is disclosed by both parties to enable each to understand the
other’s perspective and case, and to encourage early resolution;
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to provide an early opportunity for healthcare
providers to identify cases where an investigation is required and to carry out
that investigation promptly;
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to encourage primary and private healthcare
providers to involve their defence organisations or insurers at an early
stage;
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to ensure that all relevant medical records are
provided to patients or their appointed representatives on request, to a
realistic timetable by any healthcare provider;
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to ensure that relevant records which are not in
healthcare providers’ possession are made available to them by patients
and their advisers at an appropriate stage;
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where a resolution is not achievable to lay the
ground to enable litigation to proceed on a reasonable timetable, at a
reasonable and proportionate cost and to limit the matters in
contention;
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to discourage the prolonged pursuit of
unmeritorious claims and the prolonged defence of meritorious claims.
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to ensure that patients and healthcare providers
are made aware of the available options to pursue and resolve disputes and what
each might involve.
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2.3 |
This protocol does not attempt to be prescriptive about a
number of related clinical governance issues which will have a bearing on
healthcare providers’ ability to meet the standards within the protocol.
Good clinical governance requires the following to be considered –
(a) |
Clinical risk management: the
protocol does not provide any detailed guidance to healthcare providers on
clinical risk management or the adoption of risk management systems and
procedures. This must be a matter for the NHS Executive, the National Health
Service Litigation Authority, individual trusts and providers, including GPs,
dentists and the private sector. However, effective co-ordinated, focused
clinical risk management strategies and procedures can help in managing risk
and in the early identification and investigation of adverse outcomes.
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(b) |
Adverse outcome reporting: the
protocol does not provide any detailed guidance on which adverse outcomes
should trigger an investigation. However, healthcare providers should have in
place procedures for such investigations, including recording of statements of
key witnesses. These procedures should also cover when and how to inform
patients that an adverse outcome has occurred.
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(c) |
The professional’s
duty to report: the protocol does not recommend changes to the codes of
conduct of professionals in healthcare, or attempt to impose a specific duty on
those professionals to report known adverse outcomes or untoward incidents.
Lord Woolf in his final report suggested that the professional bodies might
consider this. The General Medical Council is preparing guidance to doctors
about their duty to report adverse incidents and to co-operate with
inquiries.
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3.1 |
This protocol is not a comprehensive code governing all
the steps in clinical disputes. Rather it attempts to set out a code of
good practice which parties should follow when litigation might be a
possibility.
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3.2 |
The commitments section of the protocol
summarises the guiding principles which healthcare providers and patients and
their advisers are invited to endorse when dealing with patient dissatisfaction
with treatment and its outcome, and with potential complaints and
claims.
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3.3 |
The steps section sets out in a more
prescriptive form, a recommended sequence of actions to be followed if
litigation is a prospect.
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GOOD PRACTICE COMMITMENTS
3.4 |
Healthcare providers should
–
(i) |
ensure that key staff, including
claims and litigation managers, are appropriately trained and have some
knowledge of healthcare law, and of complaints procedures and civil litigation
practice and procedure;
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(ii) |
develop an approach to clinical
governance that ensures that clinical practice is delivered to commonly
accepted standards and that this is routinely monitored through a system of
clinical audit and clinical risk management (particularly adverse outcome
investigation);
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(iii) |
set up adverse outcome reporting
systems in all specialties to record and investigate unexpected serious
adverse outcomes as soon as possible. Such systems can enable evidence to be
gathered quickly, which makes it easier to provide an accurate explanation of
what happened and to defend or settle any subsequent claims;
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(iv) |
use the results of adverse incidents and
complaints positively as a guide to how to improve services to patients
in the future;
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(v) |
ensure that patients receive clear and
comprehensible information in an accessible form about how to raise
their concerns or complaints;
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(vi) |
establish efficient and effective systems
of recording and storing patient records, notes, diagnostic reports and
X-rays, and to retain these in accordance with Department of Health guidance
(currently for a minimum of eight years in the case of adults, and all
obstetric and paediatric notes for children until they reach the age of
25);
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(vii) |
advise patients of a serious
adverse outcome and provide on request to the patient or the patient’s
representative an oral or written explanation of what happened, information on
further steps open to the patient, including where appropriate an offer of
future treatment to rectify the problem, an apology, changes in procedure which
will benefit patients and/or compensation.
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3.5 |
Patients and their advisers should
–
(i) |
report any concerns and
dissatisfaction to the healthcare provider as soon as is reasonable to
enable that provider to offer clinical advice where possible, to advise the
patient if anything has gone wrong and take appropriate action;
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(ii) |
consider the full range of options
available following an adverse outcome with which a patient is dissatisfied,
including a request for an explanation, a meeting, a complaint, and other
appropriate dispute resolution methods (including mediation) and negotiation,
not only litigation;
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(iii) |
inform the healthcare provider when the
patient is satisfied that the matter has been concluded: legal advisers
should notify the provider when they are no longer acting for the patient,
particularly if proceedings have not started.
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PROTOCOL STEPS
3.6 |
The steps of this protocol which follow have been kept
deliberately simple. An illustration of the likely sequence of events in a
number of healthcare situations is at Annex A.
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OBTAINING THE HEALTH RECORDS
3.7 |
Any request for records by the patient or
their adviser should –
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provide sufficient information to
alert the healthcare provider where an adverse outcome has been serious or had
serious consequences;
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be as specific as possible about the
records which are required.
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3.8 |
Requests for copies of the patient’s clinical
records should be made using the Law Society and Department of Health approved
standard forms (enclosed at Annex B), adapted as necessary.
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3.9 |
The copy records should be provided within 40
days of the request and for a cost not exceeding the charges permissible
under the Access to Health Records Act 1990 (currently a maximum of £10
plus photocopying and postage).
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3.10 |
In the rare circumstances that the healthcare provider
is in difficulty in complying with the request within 40 days, the
problem should be explained quickly and details given of what is
being done to resolve it.
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3.11 |
It will not be practicable for healthcare providers to
investigate in detail each case when records are requested. But healthcare
providers should adopt a policy on which cases will be
investigated (see paragraph 3.5 on clinical governance and adverse
outcome reporting).
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3.12 |
If the healthcare provider fails to provide the health
records within 40 days, the patient or their adviser can then apply to the
court for an order for pre-action disclosure. The new Civil
Procedure Rules should make pre-action applications to the court easier. The
court will also have the power to impose costs sanctions for unreasonable delay
in providing records.
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3.13 |
If either the patient or the healthcare provider
considers additional health records are required from a third
party, in the first instance these should be requested by or through the
patient. Third party healthcare providers are expected to co-operate. The Civil
Procedure Rules will enable patients and healthcare providers to apply to the
court for pre-action disclosure by third parties.
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LETTER OF CLAIM
3.14 |
Annex C1 to this protocol provides a template for
the recommended contents of a letter of claim: the level of detail will
need to be varied to suit the particular circumstances.
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3.15 |
If, following the receipt and analysis of the records,
and the receipt of any further advice (including from experts if necessary
– see Section 4), the patient/adviser decides that there are grounds for
a claim, they should then send, as soon as practicable, to the healthcare
provider/potential defendant, a letter of claim.
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3.16 |
This letter should contain a clear summary of the
facts on which the claim is based, including the alleged adverse
outcome, and the main allegations of negligence. It should also
describe the patient’s injuries, and present condition and
prognosis. The financial loss incurred by the plaintiff should be
outlined with an indication of the heads of damage to be claimed and the scale
of the loss, unless this is impracticable.
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3.17 |
In more complex cases a chronology of the
relevant events should be provided, particularly if the patient has been
treated by a number of different healthcare providers.
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3.18 |
The letter of claim should refer to any relevant
documents, including health records, and if possible enclose copies of
any of those which will not already be in the potential defendant’s
possession, e.g. any relevant general practitioner records if the
plaintiff’s claim is against a hospital.
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3.19 |
Sufficient information must be given to
enable the healthcare provider defendant to commence
investigations and to put an initial valuation on the claim.
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3.20 |
Letters of claim are not intended to have
the same formal status as a pleading, nor should any sanctions
necessarily apply if the letter of claim and any subsequent statement of claim
in the proceedings differ.
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3.21 |
Proceedings should not be issued until after
three months from the letter of claim, unless there is a limitation
problem and/or the patient’s position needs to be protected by early
issue.
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3.22 |
The patient or their adviser may want to make an
offer to settle the claim at this early stage by putting forward
an amount of compensation which would be satisfactory (possibly including any
costs incurred to date). If an offer to settle is made, generally this should
be supported by a medical report which deals with the injuries, condition and
prognosis, and by a schedule of loss and supporting documentation. The level of
detail necessary will depend on the value of the claim. Medical reports may not
be necessary where there is no significant continuing injury, and a detailed
schedule may not be necessary in a low value case. The Civil Procedure Rules
are expected to set out the legal and procedural requirements for making offers
to settle.
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THE RESPONSE
3.23 |
Attached at Annex C2 is a template for the suggested
contents of the letter of response.
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3.24 |
The healthcare provider should acknowledge
the letter of claim within 14 days of receipt and should identify
who will be dealing with the matter.
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3.25 |
The healthcare provider should, within three
months of the letter of claim, provide a reasoned answer
–
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if the claim is admitted the
healthcare provider should say so in clear terms;
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if only part of the claim is
admitted the healthcare provider should make clear which issues of
breach of duty and/or causation are admitted and which are denied and
why;
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if it is intended that any admissions will
be binding;
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if the claim is denied, this should include
specific comments on the allegations of negligence, and if a synopsis or
chronology of relevant events has been provided and is disputed, the healthcare
provider’s version of those events;
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where additional documents are relied upon, e.g.
an internal protocol, copies should be provided.
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3.26 |
If the patient has made an offer to settle, the
healthcare provider should respond to that offer in the response
letter, preferably with reasons. The provider may make its own offer to settle
at this stage, either as a counter-offer to the patient’s, or of its own
accord, but should accompany any offer by any supporting medical evidence,
and/or by any other evidence in relation to the value of the claim which is in
the healthcare provider’s possession.
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3.27 |
If the parties reach agreement on liability, but time
is needed to resolve the value of the claim, they should aim to agree a
reasonable period.
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4.1 |
In clinical negligence disputes expert
opinions may be needed –
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on breach of duty and causation;
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on the patient’s condition and
prognosis;
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to assist in valuing aspects of the claim.
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4.2 |
The civil justice reforms and the new Civil
Procedure Rules will encourage economy in the use of experts and a
less adversarial expert culture. It is recognised that in clinical
negligence disputes, the parties and their advisers will require flexibility in
their approach to expert evidence. Decisions on whether experts might be
instructed jointly, and on whether reports might be disclosed sequentially or
by exchange, should rest with the parties and their advisers. Sharing expert
evidence may be appropriate on issues relating to the value of the claim.
However, this protocol does not attempt to be prescriptive on issues in
relation to expert evidence.
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4.3 |
Obtaining expert evidence will often be an expensive step
and may take time, especially in specialised areas of medicine where there are
limited numbers of suitable experts. Patients and healthcare providers, and
their advisers, will therefore need to consider carefully how best to obtain
any necessary expert help quickly and cost-effectively. Assistance with
locating a suitable expert is available from a number of sources.
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5 |
ALTERNATIVE DISPUTE RESOLUTION
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5.1 |
The
parties should consider whether some form of alternative dispute resolution
procedure would be more suitable than litigation, and if so, endeavour to agree
which form to adopt. Both the Claimant and Defendant may be required by the
Court to provide evidence that alternative means of resolving their dispute
were considered. The Courts take the view that litigation should be a last
resort, and that claims should not be issued prematurely when a settlement is
still actively being explored. Parties are warned that if the protocol is not
followed (including this paragraph) then the Court must have regard to such
conduct when determining costs.
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5.2 |
It
is not practicable in this protocol to address in detail how the parties might
decide which method to adopt to resolve their particular dispute. However,
summarised below are some of the options for resolving disputes without
litigation:
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Discussion and negotiation. Parties
should bear in mind that carefully planned face-to-face meetings may be
particularly helpful in exploring further treatment for the patient, in
reaching understandings about what happened, and on both parties'
positions, in narrowing the issues in dispute and, if the timing is right, in
helping to settle the whole matter especially if the patient wants an apology,
explanation, or assurances about how other patients will be
affected.
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Early neutral evaluation by an
independent third party (for example, a lawyer experienced in the field of
clinical negligence or an individual experienced in the subject matter of the
claim).
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Mediation – a form of
facilitated negotiation assisted by an independent neutral party. The Clinical
Disputes Forum has published a Guide to Mediation which will assist –
available on the Clinical Disputes Forum website at
www.clinicaldisputesforum.org.uk.
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The NHS Complaints
Procedure is designed to provide patients with an explanation of what
happened and an apology if appropriate. It is not designed to provide
compensation for cases of negligence. However, patients might choose to use the
procedure if their only, or main, goal is to obtain an explanation, or to
obtain more information to help them decide what other action might be
appropriate.
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5.3 |
The
Legal Services Commission has published a booklet on ‘Alternatives to
Court’, CLS Direct Information Leaflet 23
(www.clsdirect.org.uk/legalhelp/leaflet23.jsp), which lists a number of
organisations that provide alternative dispute resolution
services.
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5.4 |
It
is expressly recognised that no party can or should be forced to mediate or
enter into any form of ADR.
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[5][ALTERNATIVE APPROACHES TO SETTLING DISPUTES][5.1][It would not be practicable for this protocol to address in any detail how a patient or their adviser, or healthcare provider, might decide which method to adopt to resolve the particular problem. But, the courts increasingly expect parties to try to settle their differences by agreement before issuing proceedings.][5.2][Most disputes are resolved by ][discussion and negotiation][. Parties should bear in mind that carefully planned face-to-face meetings may be particularly helpful in exploring further treatment for the patient, in reaching understandings about what happened, and on both parties’ positions, in narrowing the issues in dispute and, if the timing is right, in helping to settle the whole matter.][5.3][Summarised below are some other alternatives for resolving disputes –][The revised NHS Complaints Procedure, which was implemented in April 1996, is designed to provide patients with an explanation of what happened and an apology if appropriate. It is not designed to provide compensation for cases of negligence. However, patients might choose to use the procedure if their only, or main, goal is to obtain an explanation, or to obtain more information to help them decide what other action might be appropriate.][Mediation may be appropriate in some cases: this is a form of facilitated negotiation assisted by an independent neutral party. It is expected that the new Civil Procedure Rules will give the court the power to stay proceedings for one month for settlement discussions or mediation.][Other methods of resolving disputes include arbitration, determination by an expert, and early neutral evaluation by a medical or legal expert. ][The Legal Services Commission has published a booklet on “][Alternatives to Court][”, LSC August 2001, CLS information leaflet number 23][, which lists a number of organisations that provide alternative dispute resolution services.]
ANNEX A
ILLUSTRATIVE FLOWCHART
ANNEX B
MEDICAL NEGLIGENCE AND PERSONAL INJURY CLAIMS
A PROTOCOL FOR OBTAINING HOSPITAL MEDICAL
RECORDS
CIVIL LITIGATION COMMITTEE |
REVISED EDITION JUNE 1998 |
APPLICATION ON BEHALF OF A PATIENT FOR HOSPITAL MEDICAL
RECORDS FOR USE WHEN COURT PROCEEDINGS ARE CONTEMPLATED |
PURPOSE OF THE FORMS
. |
This application form and response forms have been
prepared by a working party of the Law Society’s Civil Litigation
Committee and approved by the Department of Health for use in NHS and Trust
hospitals.
The purpose of the forms is to standardise and
streamline the disclosure of medical records to a patient’s solicitors,
who are investigating pursuing a personal injury claim against a third party,
or a medical negligence claim against the hospital to which the application is
addressed and/or other hospitals or general practitioners.
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USE OF THE FORMS
. |
Use of the forms is entirely voluntary and does not
prejudice any party’s right under the Access to Health Records Act 1990,
the Data Protection Act 1984, or ss.
33 and 34 of the Supreme Court Act 1981. However, it is
Department of Health policy that patients be permitted to see what has been
written about them, and that healthcare providers should make arrangements to
allow patients to see all their records, not only those covered by the Access
to Health Records Act 1990. The aim of the forms is to save time and costs for
all concerned for the benefit of the patient and the hospital and in the
interests of justice. Use of the forms should make it unnecessary in most cases
for there to be exchanges of letters or other enquiries. If there is any
unusual matter not covered by the form, the patient’s solicitor may write
a separate letter at the outset.
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CHARGES FOR RECORDS
. |
The Access to Health Records Act 1990 prescribes a
maximum fee of £10. Photocopying and postage costs can be charged in
addition. No other charges may be made.
The NHS Executive guidance makes it clear to
healthcare providers that ‘it is a perfectly proper use’ of the
1990 Act to request records in that framework for the purpose of potential or
actual litigation, whether against a third party or against the hospital or
trust.
The 1990 Act does not permit differential rates of
charges to be levied if the application is made by the patient, or by a
solicitor on his or her behalf, or whether the response to the application is
made by the healthcare provider directly (the medical records manager or a
claims manager) or by a solicitor.
The NHS Executive guidance recommends that the same
practice should be followed with regard to charges when the records are
provided under a voluntary agreement as under the 1990 Act, except that in
those circumstances the £10 access fee will not be appropriate.
The NHS Executive also advises –
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that the cost of photocopying may include
‘the cost of staff time in making copies’ and the costs of running
the copier (but not costs of locating and sifting records);
|
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that the common practice of setting a standard
rate for an application or charging an administration fee is not acceptable
because there will be cases when this fails to comply with the 1990 Act.
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 RECORDS: WHAT MIGHT BE INCLUDED
. |
X-rays and test results form part of the
patient’s records. Additional charges for copying X-rays are permissible.
If there are large numbers of X-rays, the records officer should check with the
patient/solicitor before arranging copying.
Reports on an ‘adverse incident’ and
reports on the patient made for risk management and audit purposes may form
part of the records and be disclosable: the exception will be any specific
record or report made solely or mainly in connection with an actual or
potential claim.
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RECORDS: QUALITY STANDARDS
. |
When copying records healthcare providers should
ensure –
1. |
All documents are legible, and complete, if
necessary by photocopying at less than 100@AMP@#037; size.
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2. |
Documents larger than A4 in the original, e.g.
ITU charts, should be reproduced in A3, or reduced to A4 where this retains
readability.
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3. |
Documents are only copied on one side of paper,
unless the original is two sided.
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4. |
Documents should not be unnecessarily shuffled
or bound and holes should not be made in the copied papers.
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ENQUIRIES/FURTHER INFORMATION
. |
Any enquiries about the forms should be made
initially to the solicitors making the request. Comments on the use and content
of the forms should be made to the Secretary, Civil Litigation Committee, The
Law Society, 113 Chancery Lane, London WC2A 1PL, telephone 0171 320 5739, or to
the NHS Management Executive, Quarry House, Quarry Hill, Leeds LS2 7UE.
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ANNEX C
TEMPLATES FOR LETTERS OF CLAIM AND RESPONSE
C1 LETTER OF CLAIM
. |
Essential Contents
1. |
Client’s name, address, date of
birth, etc.
|
2. |
Dates of allegedly negligent
treatment
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3. |
Events giving rise to the claim:
|
an outline of what happened, including
details of other relevant treatments to the client by other healthcare
providers.
|
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4. |
Allegation of negligence and causal link
with injuries:
|
an outline of the allegations or a more
detailed list in a complex case;
|
|
an outline of the causal link between
allegations and the injuries complained of.
|
|
5. |
The Client’s injuries, condition and
future prognosis
|
6. |
Request for clinical records (if not
previously provided)
|
use the Law Society form if appropriate or
adapt;
|
|
specify the records require;
|
|
if other records are held by other
providers, and may be relevant, say so;
|
|
state what investigations have been carried
out to date, e.g. information from client and witnesses, any complaint and the
outcome, if any clinical records have been seen or experts advice
obtained.
|
|
7. |
The likely value of the claim
|
an outline of the main heads of damage, or,
in straightforward cases, the details of loss.
|
|
Optional information
|
What investigations have been carried out
|
|
An offer to settle without supporting
evidence
|
|
Suggestions for obtaining expert evidence
|
|
Suggestions for meetings, negotiations,
discussion or mediation
|
Possible enclosures
|
Chronology
|
|
Clinical records request form and client’s
authorisation
|
|
Expert report(s)
|
|
Schedules of loss and supporting evidence
|
|
 C2 LETTER OF RESPONSE
. |
Essential Contents
(1) |
Provide requested records and
invoice for copying:
|
explain if records are incomplete or
extensive records are held and ask for further instructions;
|
|
request additional records from third
parties.
|
|
(2) |
Comments on events and/or
chronology:
|
if events are disputed or the healthcare
provider has further information or documents on which they wish to rely, these
should be provided, e.g. internal protocol;
|
|
details of any further information needed
from the patient or a third party should be provided.
|
|
(3) |
If breach of duty and causation are
accepted:
|
suggestions might be made for resolving the
claim and/or requests for further information;
|
|
a response should be made to any offer to
settle.
|
|
(4) |
If breach of duty and/or causation are
denied:
|
a bare denial will not be sufficient. If
the healthcare provider has other explanations for what happened, these should
be given at least in outline;
|
|
suggestions might be made for the next
steps, e.g. further investigations, obtaining expert evidence,
meetings/negotiations or mediation, or an invitation to issue
proceedings.
|
|
Optional Matters
|
An offer to settle if the patient has not made
one, or a counter offer to the patient’s with supporting evidence
|
Possible enclosures:
|
Clinical records
|
|
Annotated chronology
|
|
Expert reports
|
|

ANNEX D
LORD WOOLF'S RECOMMENDATIONS
|
1. |
Lord Woolf in his Access to Justice Report in July 1996,
following a detailed review of the problems of medical negligence claims,
identified that one of the major sources of costs and delay is
at the pre-litigation stage because –
(a) |
Inadequate incident reporting and record keeping in
hospitals, and mobility of staff, make it difficult to establish facts, often
several years after the event.
|
(b) |
Claimants must incur the cost of an expert in order
to establish whether they have a viable claim.
|
(c) |
There is often a long delay before a claim is
made.
|
(d) |
Defendants do not have sufficient resources to
carry out a full investigation of every incident, and do not consider it
worthwhile to start an investigation as soon as they receive a request for
records, because many cases do not proceed beyond that stage.
|
(e) |
Patients often give the defendant little or no
notice of a firm intention to pursue a claim. Consequently, many incidents are
not investigated by the defendants until after proceedings have started.
|
(f) |
Doctors and other clinical staff are traditionally
reluctant to admit negligence or apologise to, or negotiate with, claimants for
fear of damage to their professional reputations or career prospects.
|
|
2. |
Lord Woolf acknowledged that under the present
arrangements healthcare providers, faced with possible medical
negligence claims, have a number of practical problems to contend
with –
(a) |
Difficulties of finding patients’ records and
tracing former staff, which can be exacerbated by late notification and by the
health care provider’s own failure to identify adverse incidents.
|
(b) |
The healthcare provider may have only treated the
patient for a limited time or for a specific complaint: the patient’s
previous history may be relevant but the records may be in the possession of
one of several other healthcare providers.
|
(c) |
The large number of potential claims which do not
proceed beyond the stage of a request for medical records, or an explanation;
and that it is difficult for healthcare providers to investigate fully every
case whenever a patient asks to see the records.
|
|
|
ANNEX E
HOW TO CONTACT THE FORUM
|
The Clinical Disputes Forum
|
|
Chairman
Dr Alastair Scotland Medical
Director and Chief Officer National
Clinical Assessment Authority 9th Floor, Market Towers London SW8 5NQTelephone: 020
7273 0850
|
|
Secretary
Sarah Leigh c/o Margaret Dangoor 3 Clydesdale Gardens Richmond Surrey TW10 5EGTelephone:
020 8408 1012
|
|