Upon receipt of the application the potential Defendant must:
- Acknowledge receipt within 14 days– failure to do so will result in the case falling outside of the scheme;
- Provide a complete set of the requested records in a standardised form, including radiology in a form that can be readily opened and copied, within 40 days – failure to comply with this timescale will result in the case falling outside of the scheme;
- Check if there is a SUI report or duty of candour report in relation to the matter – if there is, it must be disclosed with the medical records i.e. within 40 days, and the potential claim notified immediately to the NHSR and/or professional indemnity insurer – failure to do so will result in the claim falling outside of the scheme;
- If a SUI and/or duty of candour report is in the process of being prepared, it must be completed and made available within 56 days– failure to do so will result in the claim falling outside of the scheme;
- The Defendant must immediately notify NHSR and/or their professional indemnity insurer so that they can consider whether any admissions should be made at this stage – failure to do so will result in the matter falling outside of the scheme.
Letter of Intention to be sent within 28 days of complete copy records having been received and sorted and paginated and considered by the Claimant’s solicitor. The letter must re-state the claim under investigation (including stating any draft allegations based on the records/documents obtained to date) and that this is an opportunity for the Defendant to admit liability before expert costs are incurred. If the Defendant requires copy records to consider the claim, they must pay for the copies.
Upon receipt of the Letter of Intention, the potential Defendant must:
- Acknowledge receipt within 14 days and request any records they require – failure to do so will result in the case falling outside of the scheme;
- Provide a detailed response within 4 months – failure to do so will result in the case falling outside of the scheme;
- Ensure that a copy of each Letter of Intention to investigate a claim is provided to the ‘safety champion’ within 14 days of its receipt by the potential Defendant
Letter of Claim should be served within 18 months of intention to investigate a claim sent to Trust and NHSR, specifying the factual background, allegations and that it is supported by independent expert evidence together with discipline of expert,. Where independent expert evidence is not relied on the Claimant must indicate why not, e.g. it is based upon the records or a SUI report, and certified by an AvMA or Law Society Clinical Negligence Panel member in the following suggested wording:
“I certify that this Letter of Claim is based upon expert evidence/the SUI report/the medical records/other (delete as appropriate)”.
- In the event that the Defendant relies on evidence from a clinician, they must confirm whether they have and confirm the name of the clinician.
- There is to be no early disclosure of the Claimant’s expert report as that is likely to lead to increased litigation behaviour and therefore costs and the scheme has to be kept very simple in order for it to work.
- A fully reasoned Response to the Letter of Claim must be provided within 98 days of its receipt by the potential Defendant - failure to do so will result in the case falling outside of the scheme.
- There is provision for one independent expert report per party who should not be a single joint expert.
- The strict timetable for both parties to respond is deliberate as it is only with a simple and therefore timely scheme that this can work. However parties can agree an extension of 28 days.
- No full admission of liability, i.e. breach of duty and causation, will automatically result in the case falling out of the scheme.
- Settlement of the claim and payment of compensation will be by negotiation between the parties or in default of which via an arbitration scheme set up by PIBA with effectively junior barristers on a panel approved by AvMA and DOH arbitrating but doing the same work as if they were offering an advice on quantum.
- Upon settlement of the claim and/or payment of any compensation, the Defendant will notify its ‘safety Champion’ of such a stage and/or outcome being reached.
- The ‘safety Champion’ shall, within 56 days of payment of any damages under the scheme, write to the Claimant setting out what lessons have been learned by the Defendant and any action taken or to be taken arising out of the subject matter of the claim and to write a letter of apology.
Clear distinctions must be made when reference is made to costs. ‘Costs’ are often used in a very broad fashion to define expenses in progressing a case but there are very often many subsections of costs that are largely out of the control of the successful parties’ lawyers. These include such things as:
- Fixed legal costs plus VAT
- Medical record fees
- Pagination costs
- Expert fee(s)
Inquest costs if applicable [NB. not needed if all fatal claims are excluded – a fixed fee of XXXX number of days for the hearing or the actual costs as per case law?]
Probate fees if applicable [NB. as above not needed if all fatal claims excluded?]