It has long been recognised that there must be a better way for the courts to manage clinical negligence actions. In 2010, the President of the High Court established A Working Group on Medical Negligence Litigation and Periodic Payments. Its remit included the examination of the system within the courts for the management of clinical negligence claims; the identification of shortcomings and the making of recommendations to remedy any such shortcomings. The Working Group’s findings and recommendations are contained in its second report, submitted to the President of the High Court, in March 2012._¹

In December 2015, the Legal Services Regulation Act 2015² (the Act) introduced provisions to govern clinical negligence claims. While the relevant part of the Act has yet to come in to force, when it does it will significantly change the way clinical negligence claims are managed.

Pre-action protocol

The Act provides for the introduction of a pre-action protocol for clinical negligence claims. It will include requirements which MUST be complied with BEFORE such claims are filed in court. The purpose of the pre-action protocol is to:

• encourage early resolution of allegations relating to possible clinical negligence
• promote prompt communication between potential parties to litigation
• facilitate early identification of the issues in dispute
• reduce the number of claims filed in court and
• encourage early settlement of clinical negligence claims

How will this be achieved?

Regulations will be introduced to compel early and prompt disclosure of documents and information necessary to facilitate assessment of a potential claim. Specific time limits will be introduced. The pre-action protocol will provide for:

• disclosure of medical and other records
• notification of allegations of clinical negligence
• responses to such allegations
• disclosure of material relevant to allegations and responses
• agreement to submit issues for resolution other than by a court e.g. mediation

Time Limits

Time limits will be introduced for completion of the stages of the pre-action protocol. They have the potential to put significant pressure on available resources within healthcare facilities such as hospitals.

A similar protocol in England and Wales provides that medical and other records must be disclosed within 40 days. Once a detailed letter of claim is served, a potential defendant has 4 months within which to provide a detailed letter of response.

Beforehand, there is an obligation to write a letter of notification detailing the nature of the claim in contemplation and provide identification information with regard to the relevant patient and healthcare provider. A potential defendant is then in a position to commence its investigation and notify indemnifiers and/or the NHS Litigation Authority.

Powers of Court

In this jurisdiction, the court will have the power to direct that a claim may not proceed further until the steps required by the pre-action protocol have been taken. In addition, failure to comply with a requirement of the pre-action protocol may attract penalties in respect of costs and, in the event a claim is successful, interest on compensation awarded.

Conclusion

To be effective, realistic time limits for compliance with the various stages of the pre-action protocol will have to be introduced – and enforced by the courts. England and Wales have achieved very significant reductions in the number of cases proceeding to court. Those that do are resolved more quickly as the pre-action protocol facilitates early identification of the issues in dispute between the parties.

References available on request.