COVID-19 – Clinical negligence protocol

A new protocol for the handling of clinical negligence claims during the COVID-19 crisis was agreed on 14 August 2020 between NHS Resolution (NHSR), the Society of Clinical Injury Lawyers (SCIL) and Action Against Medical Accidents (AvMA).  The Protocol has been modelled on a best practice approach to litigation agreed between APIL and FOIL.

The Protocol recognises that many hospital complaints processes are currently suspended.  Also NHS staff, who may be factual or expert witnesses in litigation, are under significant pressure providing frontline clinical care.  NHSR has previously stated that, as a matter of principle, it would not approach staff where this could adversely affect patient care.

The Protocol promotes a collaborative approach between the parties to litigation.  Its wide ranging provisions, include:

  • Reasonable extensions of time to be agreed for letters of response and defences, and for compliance with court directions
  • Limitation moratoriums until three months after the protocol ends
  • Service by email as the default position
  • Remote examinations by experts where possible
  • Settlement meetings and mediations to take place remotely where possible
  • Encouraging agreed interim payments for damages and costs
  • Consideration of whether costs budgeting needs to take place initially, or an adjournment sought.

The protocol will remain in place indefinitely, until one of the parties gives four weeks` notice to terminate it.  It will be subject to review, and possible refinement, every eight weeks.  Other indemnifiers and representative organisations are being encouraged to adopt its provisions.

The Protocol can be found in full here.

Greg McEwen, Partner and Head of Clinical Negligence, BLM

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