What is the ‘pre-action protocol for the resolution of clinical disputes’?

By on December 27, 2017
clinical disputes

When making a claim for clinical negligence against a hospital, GP or other healthcare provider, there is a Ministry of Justice designed process to follow with the aim of allowing such claims to be resolved at the earliest opportunity.

This process is known as the ‘pre-action protocol for the resolution of clinical disputes’ and there are various stages involved.

Obtaining health records

You will usually need to begin by requesting your medical records to help establish the facts of the case. The healthcare provider should supply your records within 40 days of the request and they should not charge you more than is allowed under the Access to Health Records Act 1990 and/or the Data Protection Act 1998.

Considering rehabilitation

Both you and the relevant healthcare provider should look into whether you would benefit from rehabilitation treatment or other measures and discuss how this can he addressed.

Letter of notification

After you (and normally your solicitor) have reviewed your medical records, you should send a letter of notification to the healthcare provider, letting them know that you intend to bring a claim. The defendant should then acknowledge the letter of notification within 14 days of receipt and identify who will be dealing with your claim.

Letter of claim

You will then need to send a letter of claim to the healthcare provider, laying out the details of the medical negligence that occurred, the negative impact this had on your health and how this has caused you specific financial losses. You will also normally include any relevant medical records and expert testimony to back up your claim. You may also wish to set out what level of compensation you would be willing to accept in order to settle the matter.

Letter of response

The defendant should acknowledge receipt of the letter of claim within 14 days and then has 4 months to provide a reasoned response. This should explain whether they wholly or partially accept responsibility, or if they refute your claims. If they do accept some level of responsibility, they may offer a financial settlement.

At this point, you can choose to accept the healthcare provider’s response and any offer of settlement, or pursue the matter further.

Alternative dispute resolution

If you are not happy with the healthcare provider’s response, you should first try to resolve the matter through alternative dispute resolution. This will usually involve discussion and negotiation, and may rely on methods such as mediation and arbitration. These can allow you and the healthcare provider to agree a solution without the need to go to court. In many cases, this will be the fastest, least expensive and least stressful way to achieve a positive outcome.

Court action

If alternative dispute resolution is not successful, you may need to take the healthcare provider to court to get a positive result. If this happens, you will need to be able to demonstrate you have at least considered alternative dispute resolution and will need to co-operate with the healthcare provider to share evidence and establish which areas you agree on and which are still in dispute.

What to do if you experience clinical negligence

If you believe you have suffered negative consequences due to clinical negligence, it is a good idea to consult with an experienced clinical negligence claims solicitor at the earliest opportunity. There is usually a 3-year time limit for starting a clinical negligence claim, so it can be risky to put off the decision over whether to take action.

IBB Claims has a track record of helping people to make successful clinical negligence claims and we are able to represent many of our clients on a no win, no fee basis.

 

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