UK: The Importance Of Proper Pre-Action Disclosure In Medical Cases

Last Updated: 21 September 2016
Article by Ali Malsher

As a clinical negligence solicitor, I am sadly familiar with the problems of getting the medical records disclosed in time and indeed even complete. Although the Data Protection Act works on the basis that medical records are disclosed within 40 days, it is quite often the case that that disclosure can take up to 3 or more months before it is anything like complete.

In addition, different hospital departments have different policies. It can, therefore, be the case that radiology records are disclosed at a different time and emergency departments often keep their records completely separate. In clinical negligence, this is the normal practice with which all solicitors end up working.

In a normal case, with plenty of time to investigate, this presents irritation rather than specific difficulties. However, when short of time or you are relying on other hospital documents this can be a real problem.

A recent case has made the point that potential injury claim defendants have a duty to disclose appropriately and completely at the time of the initial request. This can now have costs consequences. As such this was an unusual case because it was looking at costs incurred by a claimant in investigating a matter.

In Chapman -v- Tyneside Hospital NHS Foundation Trust (2016) the district judge was asked to review the costs that had arisen as a result of non-disclosure. The issue in the case was that the claimant alleged that she had slipped on a leaflet on the floor of the defendants' emergency department. She fell and incurred injuries. In accordance with the pre-action protocol, she wrote a letter to the NHS Litigation Authority. They confirmed that they completed their investigations, liability was denied and that the trust had no documents to disclose.

As a result and in reliance of this assertion that no documents were to be disclosed, the claimant then commenced proceedings. During the course of the case, the defendants then went on to provide risk assessments; trust assessments for slips, trips and falls; policies in relation to the same; and standard cleaning schedules for the emergency department. Thereafter, the defendant continued to provide further documentation, including details of the cleaning contract on an ad hoc and fairly irregular basis.

After reviewing all of these documents, the claimant, with the assistance of her legal advisors, decided to discontinue the claim. However, having taken the claim forward, the claimant then applied for the defendants to pay for the costs. Normally a claimant who discontinues a case must bear their own costs and may also be required to pay those of the defendant.

The court had to look at whether costs were payable. The issues were:

  1. did the accident actually occur as claimed and
  2. what documentation should have been disclosed before proceedings began

The judge confirmed that he would have expected documentation to have been disclosed by the defendant before proceedings including their system for cleaning. This was only done after proceedings had been issued. The claimant had therefore relied on the fact that it appeared that there was no system of cleaning in the emergency department when deciding to commence court proceedings.

The judge decided that the defendant's behaviour (that is the behaviour of the NHS litigation authority) in the conduct of the litigation was entirely unacceptable. The judge was satisfied that the defendant was in possession of the documents at the time when they stated in writing that they did not have any documentation to disclose and clearly considered therefore there was misconduct on the part of the defendant. Ultimately, it was determined that the NHS was liable for the wasted legal costs.

Late, a chaotic and poor disclosure of documents is common from NHS trusts in general. Sometimes, there are valid reasons for the difficulties. For example, if the patient is continuing to attend out-patient appointments, their records are often removed for the clinicians. Sometimes the records are lost and sometimes the records are so enormous that it is inevitable that some pages or documents will go missing.

Notwithstanding that, however, it is really rare to find any case where the documents are disclosed as requested at the outset in the form requested within the time required by the legislation. Some hospitals (and they will remain nameless) are so poor that my clients are routinely advised that it may take up to 5 months to receive their records. I often have to threaten court action in order to get proper disclosure.

We often investigate cases which are not taken forward because the medical records are not supportive. This is part and parcel of claimant clinical negligence practice. However, there are cases which are taken forward because no medical records have been disclosed which indicate a non-negligent explanation for what occurred. If such records then become available at a later stage then, unless there is a proper explanation for the previous non-disclosure, it is possible that the costs of the proceedings may be recoverable from the defendant. This might encourage defendants to actually produce what they are supposed to at the time they should.

Anything that pressurises defendants to deal with disclosure properly at an early stage has to be applauded. Claims which may have no merit may proceed longer without proper information, causing expense and worry for both claimants and defendants. Anything that saves time and costs on both sides must be advantageous to all.

I doubt however whether this will change the practice of most hospitals with which I deal...

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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