What is the Pre-Action Protocol for the Resolution of Clinical Disputes?
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The Pre-Action Protocol for the Resolution of Clinical Disputes (PAPRCD) is a process and timetable for exchanging information in a clinical negligence claim. Its purpose is to encourage parties to settle clinical disputes early and outside of court proceedings. This eases the stress and strain on patients and healthcare providers.
During medical negligence claims, all parties must have access to the necessary information relating to the case so the claim can be swiftly resolved. The PAPRCD encourages a “cards on the table” approach.
The PAPRCD applies to all claims against hospitals, GPs, dentists, and other healthcare providers (both NHS and private) involving an injury alleged to be the result of clinical negligence.
This protocol does not apply to claims which are governed by:
In addition to providing a timetable for exchanging information, the PAPRCD sets out the standards for what is contained in the Letters of Claim and the expected conduct of pre-action negotiations.
The steps set out in PAPRCD are as follows:
Once your clinical negligence law specialist has established that you have a winnable claim, they will start gathering information and obtaining expert evidence. This includes your medical records from the Defendant healthcare provider.
The PAPRCD states that a copy of the records must be provided within 40 days of the request, and the cost must not exceed the charges permissible under the Access to Health Records Act 1990 and/or the Data Protection Act 1998. They should be provided to you in an indexed and paginated bundle.
If the Defendant cannot provide your medical records within 40 days, they need to alert you quickly and explain how they will remedy the situation.
If no medical records or explanation is provided, you or your advisor can apply to the Court under Rule 31.16 of the Civil Procedure Rules 1998 (CPR) to order the Defendant to provide the records.
If there are any unreasonable delays, the Court can make the Defendant pay a greater share of the legal costs by imposing a costs sanction.
Once the medical records have been received, your legal advisor will likely have them examined by an expert witness.
During this investigation period, they may send the Defendant a Letter of Notification. This alerts the Defendant that negligence has been identified and is being examined.
Sending a Letter of Notification is not mandatory, nor does it need to be a detailed letter; however, it opens the lines of communication between the parties and may encourage an early settlement.
Upon receipt of the Letter of Notification, the Defendant should respond within 14 days identifying to whom the Letter of Claim should be sent and consider what evidence should be passed onto the Claimant, which might bring about an early resolution.
The formal Letter of Claim alerts the Defendant that a claim is being pursued. The Letter must identify the alleged negligence, the injury/s suffered by the Claimant, their present condition and prognosis, details of any expert witnesses, and any relevant documents, including health records, which will not already be in the Defendant’s possession.
At this stage, your legal representative may advise you to offer to settle the claim under Part 36 of the CPR, which may prompt negotiations.
Under the PAPRCD, the Defendant has 14 days to respond to the Letter of Claim, stating who the person dealing with the matter is.
Within four months of receiving the Letter of Claim, the Defendant should send a Letter of Response stating:
In addition, the Response should clarify:
Any answers to a Part 36 offer should also be included in the Letter of Response. If the Defendant wishes to make their own Part 36 offer, it will be done at this stage using the correct procedures contained in the CPR.
Litigation should always be the last resort in a clinical negligence claim. Your legal advisor will make every effort to reach an early stage settlement through methods such as negotiation or mediation.
The PAPRCD supports ADR and the Rehabilitation Code 2015, which encourages both parties to consider the claimant’s rehabilitation needs as soon as possible.
The easiest way to start a clinical negligence claim is to contact a legal advisor immediately. The Limitation Act 1980 provides that Claimants have three years to bring a medical negligence claim (children have until they are 18 years old), so you must act immediately.
Your clinical negligence claims specialist will likely take your case on a No Win, No Fee basis. This means that if you lose your case, you will not have to pay any legal fees, although you will need to pay any expenses related to your claim (these are known as disbursements).
For more information or to speak to a trained legal advisor for free, call 0800 234 6438 today.
Nicola is a dual qualified journalist and non-practising solicitor. She is a legal journalist, editor and author with more than 20 years' experience writing about the law.
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