New cooperation in clinical negligence claims could last beyond pandemic

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New practices introduced to help the clinical negligence process during lockdown are set to stay for the time being, claimant and defendant lawyers have indicated.

A protocol agreed last summer by the Society of Clinical Injury Lawyers and NHS Resolution sought to help the conduct of litigation during the pandemic. Changes included more flexibility on limitation periods, greater use of email to serve and receive documents and online examinations of clients for medical expert reports.

Most of the restrictions imposed in England and Wales have now been lifted but the protocol looks set to remain for now.

A spokesperson for NHS Resolution said the organisation wanted to keep cases from escalating into unnecessary litigation and minimise legal costs, and the protocol had been successful in achieving these goals.

‘We hope to build on the increased co-operation that we have seen during the pandemic to deliver better outcomes for everyone involved in these claims,’ he said. 

‘This will include discussing what has worked well with the protocol agreed with the legal market so that resolving cases out of court becomes the norm for healthcare claims.’

During the pandemic, settlement meetings and mediation have taken place remotely wherever possible, while interim payments of damages and costs have been made to encourage more cooperation in the progress of claims. Parties have also considered whether costs budgeting needs to take place initially or can be requested to be adjourned in order to save court and other resources.

The protocol was due to be in place indefinitely and subject to review and possible refinement every eight weeks.

SCIL told the Gazette: ‘Whilst we are out of lockdown the effects of the pandemic are still being felt. For example, records take longer and clinical staff are very busy which delays obtaining statements and reports.

‘So the Covid protocol is here to stay for now and I expect that the best parts of it will remain even after the pandemic ends.’

Last week the Association of Consumer Organisations, which represents claimant firms, and the Association of British Insurers agreed to end their lockdown agreement but said that some of the new practices would remain in place informally. 



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