Unlike personal injury litigation, clinical negligence litigation relies on medical expert opinion to identify and determine both liability (whether there were failings in the care provided) and quantum (the losses arising from any injuries sustained).
Consequently, when the COVID-19 Pandemic took hold in March of last year many medical experts in both public and private sectors were called to healthcare’s front line in the fight against Covid-19. Understandably, they then had to prioritise clinical rather than medico-legal work.
In many cases, NHS and private hospital complaints processes were also suspended and internal investigations such as serious incident reports were delayed. The NHS also made it clear, as a matter of principle, that they would not be approaching front line or redeployed staff about litigation issues where it could disrupt patient care or have an adverse impact on staff.
These factors, amongst others, meant that clinical negligence litigation was perhaps uniquely affected by the COVID-19 Pandemic.
Recognising that these were unprecedented times, a protocol was agreed last year between NHS Resolution (who insure NHS Trusts and General Practitioners), the Society of Clinical Injury Lawyers (SCIL), and Action against Medical Accidents (AvMA) who represent the injured Claimant’s interests. The idea of the protocol was to encourage positive behaviours from both claimant and defendant lawyers and organisations, to promote the best practice that already existed, and to ensure consistency of approach around England as everyone responded to the pandemic.
It was also hoped that it would reduce the risk of costs being spent on issuing proceedings, or court applications where cases had been affected by the COVID-19 Pandemic. As a result, some of the agreed changes included greater flexibility on limitation periods, a greater use of email to serve and receive documents and the promotion of online examinations of clients for medical expert reports given the restrictions on travel imposed.
Partner and Solicitor, Simon Mansfield, from our Medical Negligence team commented:
Since being introduced last year the protocol has worked well and helped build on increased co-operation between both Claimant and Defendant teams which is ultimately better for everyone involved.
Although most of the restrictions imposed by the government in response to the COVID-19 Pandemic have now gone and hopefully the worst is now behind us the effects of the pandemic are still being felt. Clinical staff and administrators in hospitals remain very busy and processes such as requesting medical records and undertaking investigations are still taking longer. There is also still concern that pressures will increase again as we head into Autumn.
In this context, it is pleasing to see that the protocol remains in place for now and I hope, as others have commented, that the best parts of it will remain and continue to foster the increased co-operation and collaborative working that we have seen over the last few months after the pandemic ends.
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