Bodies representing different interests in clinical negligence claims have collaborated on a protocol to encourage claimant and defendant lawyers to behave 'positively' during the pandemic.

NHS Resolution, patient safety charity Action against Medical Accidents and the Society of Clinical Injury Lawyers have agreed a Covid-19 Clinical Negligence Protocol 2020.

The protocol states that medical experts have been called to the frontline as a result of the pandemic, which has created a shortage of available experts from whom claimant and defendant lawyers can commission reports on liability and/or quantum. In many cases, NHS and private hospital complaints processes have been suspended, and internal investigation processes have been delayed.

‘These are just some of the factors which result in inevitable delays in progressing clinical negligence litigation,' it states. 'These factors support the need for parties to be able to rely on a clinical negligence specific protocol for those involved in the conduct of clinical negligence litigation at this time of national emergency and the recovery period which will follow. This protocol should be seen as a reflection of the cooperation between the parties in clinical negligence claims.'

The protocol is intended to encourage 'positive behaviours from both claimant and defendant lawyers and organisations as well as consistency of approach'.  

The protocol covers moratoriums upon limitations until three months after the protocol ends. Email becomes the default position for serving and receiving documents. Clients should be examined remotely or virtually where possible for medical expert reports. Parties should adopt a ‘reasonable approach’ to requests for interim payments of damages and payment on account of costs. Video-conferencing for settlement meetings and mediations is encouraged.

On hearings and adjournments, the protocol states that NHS staff should not be required to do anything which affects frontline clinical care. ‘Equally, however, the Covid-19 situation should not be used as an excuse for avoidable delay in matters.'

The agreement will continue indefinitely until one of the parties gives notice to end it. The provisions will be reviewed every eight weeks.

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 which the NHS are under as a result of the pandemic’.

Simon Hammond, director of claims management at NHS Resolution, said the protocol balances the need to protect frontline staff’s time during the pandemic and recovery period.

Paul Rumley, chairman of the Society of Clinical Injury Lawyers, said the ‘ambitious’ protocol ‘reflects many weeks of hard work and necessary compromise’.

By Monidipa Fouzder