Clinical Negligence litigation relies on the opinion of medical experts, to identify and establish breach of duty, causation and quantum issues. Many of these medical experts work in both public and private sectors and many of whom have been called forward to healthcare’s front line in the fight against Covid-19. This has created a shortage of available experts to give evidence on liability and/or quantum to support both the Claimant and Defendant.
In 2020, a new protocol was implemented to encourage positive behaviours from Claimant and Defendant lawyers. This protocol can be relied upon throughout the duration of the Covid-19 pandemic and recovery.
This protocol covers issues relating to limitation and extensions of time, telephone calls and emails, service by email (including new proceedings), medical examinations of clients for condition and prognosis reports, exchange of evidence, interim payments, settlement meetings and mediations, BACS payments, cost budgeting, and hearings including adjournments.
[Further information on the protocol can be found at: https://resolution.nhs.uk/wp-content/uploads/2021/03/Covid-19-Clinical-Negligence-Protocol-2020-1.pdf ]
How Covid-19 has affected us:
The impact upon disclosure of Medical Records
The first stage of a Clinical Negligence claim is for us to access and review the medical records with our experts. Some NHS trusts and GP practices have risen to the challenge and have continued to provide records within the statutory timescale of 30 days (GDPR 2018), whereas others have struggled significantly, with records taking many months or more to materialise.
It is a difficult call to make to seek a Court order for disclosure (which is the only way to force the issue), when we are all acutely aware of the challenges posed by the pandemic.
The impact on limitation
The Covid-19 protocol allows for an unchallengeable extension to limitation until 3 months after the end of the protocol (for participating organisations). This has the potential to lead to a significant number of cases where limitation occurs on the same (as yet unknown) date 3 months after the end of the protocol.
In order to avoid this backlog, we seek to agree a fixed limitation date for each file and review and extend it further if necessary.
The impact of self-isolation and working remotely
Like many companies, the pandemic led to a shift in our working dynamics, with all staff initially forced to work remotely.
Since the easing of restrictions many of our staff have been making a phased return to the office. We are also pleased to return to client-facing meetings, where necessary, socially distanced in one of our meeting rooms.
More recently, the NHS Track and Trace app has caused its own challenges with ‘pings’ to numerous members of the team, forcing them to self-isolate for up to 10 days. Thankfully working remotely is no longer an upheaval and our usual service remains.
Joining the firm in 2021 brought new challenges. Starting a new job in the in the midst of remote working was somewhat daunting as many of our colleagues have yet to return to work in the office. We found that we may know a name from through email, or over the phone, but it proves difficult putting a face to that name when people do attend the office.
The impact of Covid-19 on our work in the future
Covid-19 has caused significant delays within the healthcare sector, with many individual’s treatments being pushed back. Recent news suggests that a potential 13 million patients may be waiting for routine procedures and investigations to be carried out in the next 12 months [https://www.bbc.co.uk/news/uk-57793122].
These delays will undoubtedly lead to an increase in avoidable poor outcomes for patients and their families.
For legal advice relation to Clinical Negligence contact us at medical@bttj.com
