What is the Pre-Action Protocol for the Resolution of Clinical Disputes?

The Pre-Action Protocol for the Resolution of Clinical Disputes, as outlined by the Ministry of Justice, is designed to encourage the effective handling of compensation claims against medical practitioners and institutions. The aim of the Protocol is to promote early settlement, meaning disputes can be resolved without the need to involve the courts.

It sets out the actions that both parties should follow before the case reaches court, detailing expected timeframes and how parties should communicate between each other during negotiations.

What happens when you start a medical negligence claim?

We know that pursuing legal action can seem daunting, so it is important that you have the support of a trusted, expert medical negligence solicitor to ensure that your claim runs smoothly and successfully.

To start a medical negligence claim, you can speak to a member of our team for an initial, no-obligation discussion by phoning 0330 041 5869 or reaching out online. We’ll ask you to tell us what has happened, who was involved, and how you became ill or injured. We’ll also explain how the process works from start to finish, and what support you can expect from us at each step.

We will need to discuss your funding options before we can begin pursuing your claim. The vast majority of our medical negligence cases are funded by a No Win No Fee agreement, though there are alternative options available.

Once this has been agreed, we’ll begin actioning the Pre-Action Protocol, starting with collecting any relevant information from your medical provider.

Medical Records

The first step in complying with the Protocol is to request any medical records relating to the treatment you received from your medical practitioner. This can take some time as, although the Protocol states the records should be provided within 40 days, it often takes several months to be provided.

Once all the records have been obtained, they will then be sent out to an external agency so that they can be put into chronological order, indexed, and paginated. The external agency will also be asked to advise whether there are any missing records. If there are any, then a decision will be made as to whether these records are relevant to the issues being investigated in the medical negligence claim. If they are relevant, then these missing records will be requested. Most often the missing records will be located and provided, although this can sometimes delay the progress of the claim by some months.

Expert Medical Reports

The next stage is to obtain an independent, expert medical opinion on any instances of breach of duty or causation in the medical records. How long this takes can be difficult to determine, as factors such as the expert’s turnaround time and the complexity of the medical procedures involved can have a significant impact on timescales.

When we are happy that all the key reports on breach of duty and causation have been received, it may then be necessary to organise a conference with you, the experts, and your legal team, including counsel (barrister). This is so the expert evidence can be tested, and any outstanding matters in the medical negligence claim considered. In addition, an assessment on the claim’s prospects of success will also be undertaken.

Submitting a Letter of Claim

If it is felt that the prospects of a successful case is reasonable, a formal Letter of Claim to the proposed defendant(s) will be prepared in accordance with the Protocol. Generally, a Letter of Claim should contain:

• A clear summary of the facts on which the claim is based;
• The main allegations of negligence;
• Details of all injuries that have been sustained as a result of the alleged negligence, including the current condition and future prognosis, where relevant and if known; and
• Details of any other financial losses sustained as a result of the injuries.

The Letter of Claim will then be sent to the experts to ensure they support the allegations, as drafted, and that the medical terminology used is correct.

The defendant then has 14 days to acknowledge the Letter of Claim, and 4 months to provide their Letter of Response. However, in practice, the defendant usually requires additional time, particularly where the claim is complex and/or multiple expert reports are required.

Receiving a Letter of Response

When the Letter of Response is received it will be considered in line with the Letter of Claim. The defendant may:

• Admit liability
• Deny liability
• Admit some or all of the allegations of negligence but deny they caused injury

If they admit liability, then steps will be taken to ascertain the potential value of the medical negligence claim and discuss possible settlement with the defendant.

If they deny liability or only make partial admissions, which is common, then there may still be an opportunity to narrow the issues between the parties and consider settlement before court proceedings are commenced. However, the medical negligence claim will need to be risk assessed again to ascertain what the strengths and weaknesses are. To do this the medical expert(s) will be asked for their opinion on the defendant’s Letter of Response. If the expert(s) remain supportive, then a decision will then be made as to whether court proceedings should be started.

The Pre-Action Protocol for the Resolution of Clinical Disputes is very involved and can often take two to three years to complete.

What happens if the Pre-Action Protocol is unsuccessful?

While most medical negligence claims are resolved with the need to begin court proceedings, there are some cases where liability is not accepted or the level of compensation due is not agreed upon. In these cases, the claim is taken to court, and a judge is appointed to adjudicate.

It’s important to note that even when claims are taken to court, both parties are required to consider all attempts and options to settle the case without the need for further involvement from the court. This means that even after court proceedings have begun, it may not be necessary to attend a court hearing if an agreement can be reached in the meantime.

You can learn more about court proceedings for medical negligence claims below.

Introduction to medical negligence claims

What happens with the Pre-Action Protocol is unsuccessful?

Glossary of Key Terms