Clinical Negligence Update: Protocol for Clinical Negligence Litigation

It is noted to be a statement of best practice rather than a ‘one size fits all’ guide and revokes the previous 2009 and 2012 protocols.  To access the full protocol document, appendices and template letters click here. 

What are the key changes to the clinical negligence protocol?

• Issues not in dispute should be taken off the table as soon as possible
• There will be sanctions for non- compliance with the protocol. For example, unnecessary costs by reason of non-compliance will be awarded against the defaulting party. In addition, if the Plaintiff fails to comply with the protocol resulting in unnecessary costs being incurred, the matter may be stayed pending payment of those costs. Where previously, a party might have sought an order for costs incurred, attributable to another party’s failure to comply with the former protocol, ordinary course was for the Judge or Master to leave the issue of costs as a matter to be addressed by the trial Judge or upon resolution of the matter i.e. to push any costs orders down the line. It is very clear from the terms of the protocol and from early commentary by the judiciary that this will no longer be the case under this new protocol.
• The Plaintiff’s solicitor must separate the request for provision of medical records and the letter of claim. Formerly, this was often heaped into one letter. Under the new protocol, this is now a two stage process. Initially, the records should be sought and this should be followed by a separate letter of claim. Template forms are included within the appendices and can be downloaded from the Law Society NI website.
• The old protocol complied with the Data Protection Act 1998. Since then of course we have seen the introduction of GDPR. The new protocol states that all medical notes and records must now be provided free of charge and within one month of the request. An extension of up to 3 months is permitted where the notes are complex or onerous. It is noted that notes and records can come from multiple sites at multiple institutions and to assist the medical institutions, the Plaintiff must be specific when requesting records.
• The new protocol also introduces formal standstill arrangements which effectively suspend statutory or contractual limitation periods. The former protocol made no reference to these which are widely recognised and used in clinical negligence matters. It is noted, however, that no party can be compelled to enter into a standstill agreement.
• Particular emphasis is placed on the importance of maintaining the independence of expert witnesses. This is also reflected in paragraphs 14 and 15 of the new expert witness practice direction, the key changes to which, are set out below. A new template letter of instruction to experts has been included in the appendices.
• The defendant has four months to investigate and respond to the letter of claim and the protocol allows for an extension of time if the parties are in agreement. There is a section within the new protocol specifically addressing pleadings and the standard expected by the court.
• Trial bundles and medical literature are now to be lodged with the court office 7, (no longer) 14 days prior to hearing.

What are the key changes to the expert's practice direction?

The new expert’s practice direction is specifically bespoke to clinical negligence actions and adopts the core aspects of the former 2015 direction. In addition:-

• It is now stipulates that the expert must have the requisite expertise for the specific case instructed. This should assist in reducing the costs of obtaining unnecessary reports. e.g. if the Plaintiff engages an expert without specific expertise e.g. if an expert comments on a particular type of surgery without having experience of performing said specific type of surgery, it will be open to the defence to challenge this report and to argue that costs should not be borne by the defendant.
• Experts are now signposted to guidance specific to medical practitioners produced by their professional bodies.
• It also removes the costs budgets for expert witnesses.
• Circulation of the minutes from expert’s meetings, beyond the experts, is prohibited before agreement and signature by the participating experts.
• The Parties’ legal advisors are not to have any input to the expert’s agreed minute.

There is a very clear focus throughout the protocol on the importance of collaboration and regular communication between the parties to the proceedings. This should ideally prevent matters coming before the court which could be more easily addressed between the parties themselves, saving time and expense. The med mal team at DAC Beachcroft (N.Ireland) LLP are happy to assist with any queries you or your teams may have in relation to the new protocol.