NHS, solicitors and patients group agree Covid-19 claims protocol

Rumley: Ambitious protocol

NHS Resolution, the Society of Clinical Injury Lawyers (SCIL) and patient safety charity Action against Medical Accidents (AvMA) have signed up to a new protocol to better manage claims during Covid-19.

Unlike other time-limited claims protocols that were agreed during lockdown, the agreement – which includes a moratorium on limitation – will be in place until one of the parties gives notice to end it.

It was, however, modelled on the best practice approach to litigation agreed by the Association Personal Injury Lawyers and the Forum of Insurance Lawyers, and the protocol on the conduct of personal injury litigation drafted by the Association British Insurers and Association of Consumer Support Organisations.

The provisions are subject to review and possible refinement every eight weeks, and other representative and medical indemnity organisations have been urged to sign up to it.

The protocol recognises that many NHS and private hospital complaints processes have been suspended and internal investigations such as serious incident reports have been delayed due to Covid-19.

NHS Resolution said in May that, as a matter of principle, it would not approach frontline or redeployed staff where it could disrupt patient care or have an adverse impact on staff.

This would inevitably delay clinical negligence litigation and was why a dedicated protocol was needed. However, the document says the Covid-19 situation “should not be used as an excuse for avoidable delay in matters”.

Parties will be allowed to refer the court to the protocol for non-compliance if subsequently there are issues or arguments about costs being incurred unnecessarily by either party during this time, and also to demonstrate compliance, such as with service provisions.

The protocol provides:

  • Moratoriums on limitation until three months after the protocol ends;
  • Making email to serve and receive documents the default position;
  • Encouraging innovation, such as medical experts examining clients online;
  • Encouraging more co-operation to progress claims, particularly interim payments of damages and costs to avoid unnecessary court hearings;
  • Settlement meetings and mediations to take place remotely wherever possible; and
  • Considering whether costs budgeting needs to take place initially or an adjournment sought in order to save court and other resources.

Paul Rumley, chairman of SCIL, said the moratorium should prove “particularly useful”, by saving unnecessary work and costs in issuing cases which were “simply not ready to proceed during this time”.

He added: “It is an ambitious protocol, and reflects many weeks of hard work and necessary compromise by everyone involved in it.”

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.”

AvMA chief executive Peter Walsh said the protocol should provide assurance to those with a potential clinical negligence claim, whilst also acknowledging the severe pressure the NHS was under because of the pandemic.

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