The number of complaints and claims against healthcare professionals and establishments is growing. It was found that the main reasons for large delays and costs in medical negligence cases occur in the pre-action stage. Because of these findings, a pre-action protocol was put into place.

The protocol is designed to help parties settle claims without needing to go to court by resolving any concerns, complaints and claims as quickly and efficiently as possible. All clinical negligence claims are expected to follow this protocol.

Aims of the protocol

The general aims of the protocol are:

  • To maintain/restore the relationship between the patients and the healthcare provider.
  • To resolve as many disputes as possible without litigation.

  There are also specific objectives:

OPENNESS

  • To encourage early communication between the patients and the healthcare providers regarding the issue/problem
  • To encourage patients to voice any concerns they may have as early as possible
  • To encourage healthcare providers to develop systems for early reporting of treatment outcomes and to provide the full explanations to patients
  • To ensure that sufficient information is disclosed to each party so that they both have a full understanding of the perspective of the other.

  TIMELINESS

  • To provide an early opportunity for healthcare providers to carry out investigations on cases where required
  • To ensure that all relevant medical records are provided to patients on request and in the allowed time
  • To ensure that all relevant medical records are made available to healthcare professionals if they are in possession of patients or a third party
  • If an agreement cannot be achieved, for legal proceedings to start and be kept within a reasonable timeframe
  • To discourage claims which are not valid and discourage the prolonged defence of valid claims

  AWARENESS OF OPTIONS

  • To ensure that all patients and healthcare providers are aware of all the options available when making and resolving disputes

A Code of Good Practice

The protocol sets out a code of good practice which should be followed when legal proceedings could be a possibility.

Healthcare providers should:

  • Ensure that they have key staff who are appropriately trained for the event of a complaint/claim
  • Ensure that clinical practice is delivered to an acceptable standard and that this is monitored regularly
  • Set up reporting systems to record and investigate unexpected outcomes as soon as possible
  • Use the results of incidents and complaints in a positive way to improve services and prevent the same situation occurring in the future
  • Ensure that patients are able to raise their concerns by providing them with relevant information
  • Ensure that there are efficient systems in place to record and store patients records
  • Advise patients of all possible outcomes and provide written accounts on request of what happened

  Patients should:

  • Report any concerns they may have to healthcare professionals as soon as possible. Doing this allows professionals to offer advice for patients to take appropriate action
  • Consider the full options available where dissatisfaction was present
  • Inform health care providers when the matter has been resolved and when the patient is satisfied

The steps of the protocol:

Medical Records

  • Obtain any medical records from healthcare professionals which are relevant to the case
  • The records should be provided to the patient within 40 days
  • If healthcare professionals fail to meet this deadline, an application can be made to the court for them to comply with the initial request

Letter of Claim

  • A letter of claim should be sent to the responsible party
  • It should include a clear summary of the facts and details of the main allegations of negligence

The Response

  • The healthcare provider should acknowledge the letter of claim within two weeks of receiving it
  • They should then respond to the letter within four months and either accept or deny the claim
  • If the patient has suggested an offer to settle the claim, the healthcare provider should respond to this offer, whether accepting or not

Experts

  • Expert opinions may be needed in cases which are being disputed to assist in any decisions being made

Alternative Dispute Resolution

  • Before litigation proceedings take place, parties involved should consider whether a form of alternative dispute resolution would be suitable
  • This could include discussion, negotiation and mediations for parties to agree on an outcome and settle the claim

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