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What is a Standard Clinical Negligence Protocol?

The standard of healthcare in the UK is widely regarded as among the highest in the world, but sometimes, things go wrong. Clinical negligence can happen for a range of reasons in both public and private healthcare settings, and it can take many forms. Whether you’ve experienced negligence at the dentist or during a routine medical procedure, if something goes wrong, you can make a clinical negligence claim.

The process of making a medical negligence claim can seem daunting, but it doesn’t need to be. In this article, we’re going to explain the clinical negligence protocol (pre action protocol) in the UK and what to do if you want to make a claim.

What is Clinical Negligence?

The term ‘clinical negligence’ refers to clinical disputes pertaining to situations when a healthcare professional (nurse, midwife, dentist, surgeon etc.) makes an error, resulting in avoidable harm to the patient. If you’ve suffered an injury, illness, or any other type of harm as a direct result of failure from a healthcare provider, you may have been a victim of clinical or medical negligence.

See also our personal injury claims page for some more information about other types of claims you can make.

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Types of Clinical Negligence

You can claim clinical negligence at any stage of your medical experience. This means that from failure to diagnose an issue, to providing the wrong type of treatment overall, the entire healthcare process is susceptible to clinical negligence claims.

The nature of clinical disputes claim can vary, with some common ones being:

  • Misdiagnoses
  • Prescription errors
  • Brain injuries
  • Birth injuries
  • Surgical mistakes

When a person suffers medical negligence, the repercussions on their quality of life can be extremely serious, and there is the need to hold those responsible to account. To do this, you need to follow the clinical negligence protocol.

What is Clinical Negligence/Pre Action Protocol?

Suing for medical negligence can be a complicated process, so it’s best to seek the advice of an experienced legal firm, like OH Parsons. Before starting the legal process, you can make a complaint with the healthcare provider directly (in relation to the NHS, you may need to contact the NHS Resolution team, formerly known as the NHS Litigation Authority) and follow their complaints process. This differs from clinical negligence protocol as it isn’t required from a legal standpoint, and rarely results in compensation.

Clinical negligence protocol is sometimes referred to as pre action protocol, and the aim of it is to avoid litigation whilst getting the best results possible for everyone involved.

If you enlist the help of one of our lawyers, they will fight your corner and aim to get you the highest compensation possible by taking the following steps.

1. Medical records consent

The first step is to grant your lawyers access to your medical records and other relevant documents. This is so that they can see any history that may be relevant to your case. It’s understandable that you might want to keep your medical report documents private, but if court proceedings ensue later on, the party that you’re claiming against will have permission to see your full medical records. For this reason, you need to ensure your lawyer is familiar with your medical records by signing a consent form so they can access them at an early stage.

Once a request for access to medical records has been made, the responsible healthcare provider must send them within 40 days. If they fail to do this, they will be in breach of the Civil Procedure Rules 1998 (CPR) and a court application can be made.

2. Letter of claim

After your lawyer receives your medical records, they will send a formal letter of claim to the responsible healthcare provider. The letter of claim could be sent to their insurer, or in the case of NHS related claims, it might need to be sent to the NHS Resolution in order for an investigation to begin. The letter of claim will give a brief outline of circumstances surrounding the alleged negligence and whether you suffered financial loss as a result.

The letter of claim must include sufficient information and details so that the healthcare provider can conduct their own investigation promptly. The healthcare provider has to acknowledge receipt of the letter of claim within 14 days of it being sent.

3. Response

Following the letter of claim, healthcare providers have four months to send a letter of response. During the four month response window, the healthcare provider will conduct an initial investigation into the allegations laid out in the letter of claim. They will focus investigations into establishing what happened, and from this, they can either admit fault, or they may dispute the claim.

If they admit fault, they could offer a settlement amount as an early resolution. If they dispute the claim, the pre action protocol moves to the next step.

4. Alternative dispute resolution

For any disputed claims, both parties should adopt a reasonable approach and try to resolve the issue without having to start court proceedings. This is known as alternative dispute resolution. There are a few ways this can be done, including:

  • Mediation
  • Arbitration
  • Ongoing negotiations

It’s not compulsory to engage in alternative dispute resolution, but it can be beneficial to a case if the claimant decides to (for example, the court may consider your willingness to settle the matter out of court when determining the legal costs that are to be paid). If you’re unable to reach an agreement after this, the next step is to issue court proceedings.

We have significant experience in dealing with the alternative dispute resolution process for clinical negligence claims.

5. Court Proceedings

Going to court is a last resort in the clinical negligence protocol, and even in the event court proceedings have begun, it’s expected that both parties will remain committed to efficient case management, work together to agree on necessary procedural directions, and continue to seek a resolution outside of court.

You can’t issue court proceedings unless more than four months have passed since the letter of claim was first issued. This is so that everyone involved has enough time to do their own research, gather expert evidence and carry out any necessary investigations.

If your clinical negligence case goes to court, your lawyer will represent you in the proceedings and advocate for you to receive a fair and just settlement figure, although the ultimate decision lies with the court. They will also assess any legal costs that are due.

Claiming for Clinical Negligence with OH Parsons

Whether your case goes to court or not, you need to have comprehensive legal representation throughout. At OH Parsons, our team of clinical negligence solicitors are among the best. They have a proven track record in securing compensation for patients who have suffered avoidable mistakes at the hands of healthcare providers, and we’re professionally equipped to do the same for you.

As with personal injury claims, employment cases and other negligence claims, our top solicitors can assist you in obtaining expert evidence and pulling together all the necessary information to form a strong case. Our dedicated approach means you will have ongoing support throughout the process.

To find out more about clinical negligence protocol and how we may be able to help you, please contact us here.

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