The clinical dispute resolution process you should follow if you have suffered injury from medical negligence

The clinical dispute resolution process should be followed for clinical injury claims contemplated against both NHS and private healthcare providers – whether this be a hospital, a GP or a dentist.

In this article you will discover – the importance of making a complaint; how to obtain your medical records; the purpose of the Letter of Notification, Letter of Claim and Letter of Response; the need to consider rehabilitation and how to avoid court action unless it is absolutely necessary.

What is the clinical dispute resolution process?

A clinical negligence dispute should follow a general process as set out in what is known as the Pre-Action Protocol for the Resolution of Clinical Disputes.

This process should be followed whether you have a solicitor acting for you or you are making the claim yourself as a litigant-in-person.

It is a detailed guideline as to the steps and timetable both you (as the Claimant) and healthcare provider (as the Defendant) should take prior to commencing court proceedings. These steps can help establish if you have a potential claim, allows the exchange of evidence by both sides, obtaining of medical records, attempting to resolve the dispute by way of Part 36 offer, obtaining expert evidence, notifying insurers / indemnifying bodies of a claim.

The protocol is designed to either resolve the dispute or gather sufficient evidence to issue proceedings at court to pursue the claim – if liability is disputed by the healthcare provider.

The process is summarised in a helpful flowchart 

Be aware – you should first complain to the healthcare provider before embarking on the clinical dispute resolution process. See our detailed article explaining about the NHS patient complaints procedure.

What types of potential clinical negligence claim does the clinical dispute resolution process apply to?

The clinical dispute resolution process applies to all contemplated claims for personal injury caused as the result of clinical negligence by hospitals, GPs, dentists and other healthcare providers.

Look out – the process should be followed whether it is an NHS or private healthcare provider.

Will your solicitor obtain a copy of your medical records to help evaluate your potential claim?

“Yes” – your medical records are essential to the clinical dispute resolution process to help evaluate your claim.

Your solicitor will require you to sign a consent form for the release of your medical records from your GP and/or treating hospital. The protocol gives a template of the consent form that should be used. The request should provide sufficient information to identify the medical records required and put the medical authority on notice that a potential claim may be contemplated.

These records should be provided by the healthcare provider within 40 days of the request. A fee may be payable – that is no more than that set out in the Access to Health Records Act 1990.

What is a letter of notification?

Your solicitor will examine your medical records provided and may feel necessary to seek a medical expert report to provide an opinion as to whether negligence has occurred.

If your solicitor believes there is sufficient evidence to take the next step in the clinical dispute resolution process – a Letter Of Notification will be sent to the healthcare provider believed at fault. Your solicitor will send a copy of the Letter Of Notification to the NHS Litigation authority (NHSLA), other defence organisation or indemnity insurer.

The protocol provides a template for the format of the Letter Of Notification.   

The healthcare provider should acknowledge receipt of your letter of notification within 14 days, provide the details of the person who is dealing with the matter, forward a copy to their defence organisation, decide whether to investigate the allegations, provide any additional information that could help resolve the dispute.

Should rehabilitation be considered to reduce the impact of your injury?

“Yes” – rehabilitation to attempt to reduce the impact of your injury and help you recover should be considered at the earliest opportunity. This requirement is both on you (as the Claimant) and the healthcare provider – whom your claim is contemplated against (as the potential Defendant).

What happens if your solicitor believes there is sufficient evidence to merit continuing with the clinical dispute resolution process following a response to your letter of notification?

After considering all of the evidence and the healthcare provider’s response to the letter of notification – your solicitor may believe there is sufficient merit to proceed with a clinical negligence claim on your behalf.

Your solicitor will therefore send a Letter of Claim.

The letter of claim is sent to the contact provided by the healthcare provider (with a copy sent to the NHS Litigation Authority, other defence organisation or indemnity insurer).

The letter of claim includes a description of the claim, allegations of negligence made, the evidence relied on, the financial losses incurred, guidance on heads of loss, the funding arrangement in place, refers to the medical records relied on, a description of any medical expert evidence supporting the claim. The Claimant may at this point make a Part 36 offer to settle the claim.

The healthcare provider should be given 4 months to investigate the claim following the Letter Of Claim.

Watch out – court proceedings should not be commenced within 4 months of your letter of claim. However, if limitation is approaching your solicitor may decide it is necessary to issue protective proceedings so as not to fall foul of the statutory limitation period. A stay of proceedings can be requested after proceedings have been issued at court in such circumstances.

The protocol provides a template letter of claim.

What should the healthcare provider do on receipt of the letter of claim?

The Defendant healthcare provider should reply with a Letter Of Response within 4 months of the letter of claim – indicating whether all or part of the claim is admitted and giving reasons for any denials.

Details should be supplied of any unspecified indemnity insurer or litigation authority, whose details have not already been provided.

The Defendant may request an extension of time, deal with any Part 36 offers made by the Claimant or may decide to make a Part 36 offer to settle themselves.

The protocol provides a template Letter Of Response.

Be aware – the protocol encourages the parties to cooperate in discussions to see whether the claim can be settled by accepting liability or without prejudice. Court action should be considered a last resort and is to be avoided so far as is possible and only after the clinical dispute resolution process has been exhausted.