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FOCIS response to CDF Provisional Final Draft Amended Clinical Negligence Protocol


Response from the Forum of Complex Injury Solicitors to the CDF Provisional Final Draft Amended Clinical Negligence Protocol.



  1. The Forum supports an amendment to the Protocol at this point. 

  2. The Forum agrees that there should be no general Protocol but that instead there should be specialist sub-protocols in the different disciplines.

  3. The Forum believes that the Protocol document should clarify obligations that are habitually breached by medical organizations (MO) providing disclosure. Therefore for example in birth injury claims it should be made clear in the Protocol document that the CTG tracing should be provided in continuity and not on A4 or A3 sheets. The cost of doing this now is minimal and it is simply not possible reliably to interpret CTG traces unless copied in continuity as per the original.  Likewise in respect of all clinical negligence cases, the MO should be required to certify that a copy of the complete complaints file, if any and the complete adverse incident file (including risk management documentation and witness statements) if any should accompany provision of the copy records.

  4. Delay in receipt of medical records is a major source of wasted time and costs. The Forum agrees that the MO should not be allowed to charge if medical records are received more than 40 days following the request and likewise that there should be an additional penalty to cover the additional costs involved in chasing late documentation if the records are received after 60 days. The Forum acknowledges the problems with Primary Statute in respect of this item. Pending primary legislation, the 40 day issue could be solved by the MO voluntarily agreeing to forego the charge. 

  5. The issue of quality of copied documentation is again a major source of wasted time and costs. The issue should be addressed and policed. Quality namely in terms of the care with which each page has been copied, the completeness of the documentation and the order in which the copy documentation has been provided.

  6. The Forum endorses the proposal for the writing of Letters of Notification by the Claimant's advisers in advance of service of a Letter of Claim. This proposal was canvassed by L J Jackson and the Forum does not understand why he felt it impractical. In respect of the template for the Letter of Notification, the words "or Defence" should be added at the end of paragraph 6 so that it becomes quite clear that the failure to respond to and action the Letter of Notification should affect subsequent application for extensions of time both for the Letter of Response and the Defence once proceedings have commenced.

  7. The Forum believes that the Letter of Claim should not include the need to refer to Heads of Quantum claims in the most complex cases. Such cases very often proceed by way of Split Trial in any event and the Heads of Claim are widely known and recognised both by Claimants and Defendants. The information is thus not helpful but does provide an oft used excuse for delay in serving the Letter of Response. It is acknowledged that Defendants need to make provisioning for claims but Defendants to medical claims have dealt with many similar such claims and are able to make their own proper provisioning estimates. The need for quantum information should thus be waived in respect of those cases where lump sum equivalent compensation is likely to exceed £500,000. The need to serve medical evidence on C&P should remain.

  8. The Forum is concerned at the suggestion that proceedings should not be started until at least 3 or 4 months after the Letter of Claim unless there is a limitation problem. If a Defendant indicates that they are not able to serve a Letter of Response within the 3 or 4 month period then the Claimant should be able to take action at that point without having to await expiry of the 3 or 4 month period. The Claimant should be able to take action at the point where it is clear that the Defendant will not be able to comply with its obligations under the Protocol.

  9. The Forum would only support a Letter of Response after 4 instead of 3 months if there could be a strong assurance of compliance within that extended period and a clear sanction in the event that it is not.


02.03.2010

Adrian Desmond

Chairman for FOCIS


NOTE:



The Forum of Complex Injury Solicitors



FOCIS members act for seriously injured claimants with complex personal injury and clinical negligence claims, including group actions.  The objectives of FOCIS are to:-



  • Promote high standards of representation of claimant personal injury and medical negligence clients,

  • Share knowledge and information among members of the Forum, 

  • Further better understanding in the wider community of issues which arise for those who suffer serious injury, 

  • Use members' expertise to promote improvements to the legal process and to inform debate, 

  • Develop fellowship among members.


See www.focis.org.uk for further information.


Membership of FOCIS is intended to be at the most senior level of the profession, currently standing at 27 members. The only formal requirement for membership of FOCIS is that members should have achieved a pre-eminence in their personal injury field. Three of the past presidents of APIL are members of FOCIS. Firms represented by FOCIS members include:


Anthony Gold

Boyes Turner

Charles Russell

Digby Brown

Field Fisher Waterhouse

Freeth Cartwright

Girlings

Hodge Jones & Allen

Hugh James

Irwin Mitchell

Kester Cunningham John

Kingsley Napley

Leigh Day

Linder Myers

McCool Patterson Hemsi & Co

Osborne Morris & Morgan

Pannones

Parlett Kent

Potter Rees

Prince Evans

Russell-Cooke

Russell Jones & Walker

Stewarts Law


FOCIS has been the name since 2007 of the organisation formerly known as the Richard Grand Society (founded in 1997 based on the concept of the American 'Inner Circle of Advocates' which had been formed in 1972 by Arizona and San Francisco Attorney Richard Grand).


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