Happy New Year 2020!
We’re back in the Clinco office, ready to get to work on behalf of our valued clients old and new.
We’d like to wish you all the best for the coming year and hope that it will be a successful and positive one for you all.
We posted our general observations recently on the recommendations of the CJC report published in October. As a medical records pagination service, our specific area of interest is the preparation of medical records. The report makes several references to this stage of the case.
The report recommends that the claimant retain the responsibility for obtaining the medical records and sorting and paginating them. This was an early area of agreement within the working party (para 3.52). The working party also agreed (para 3.55) that the cost of this exercise should be included within the FRC limit, whether it was carried out by an external pagination service or inhouse. At Clinco we already operate capped or fixed fee schemes in anticipation of this provision and are expecting these to become the norm in lower value cases.
At Clinco we are increasingly asked to use our expertise and experience to prepare a core bundle of key documents at the outset, often alongside the full bundle with dual pagination.
The CJC recommended the scope of the records to be limited to:
This proposal reflects current practice in the majority of cases, so there is nothing new here. The amount of records can still be very substantial. There was nothing in the report about making an analysis of relevance of medical records within a certain provider – we have seen many cases where there are years of complex history not relevant to the actual allegations. The creation of an early core bundle was also not mentioned.
There are costs savings to be made here, of particular benefit in lower value claims, and practitioners do not need recommendations from the CJC to implement them.
The report used the term ‘clinical pagination’ to describe the experts’ representatives’ preference for sorting medical records by specialty rather than pure chronological order. At Clinco, we always sort by category, specialty and (only then) date order as it makes analysis so much clearer. The exception is that a core bundle of, say, 100 pages of key medical records will often be more useful if it follows the order of events.
We’re surprised that experts have ever seen a whole bundle in chronological order (but not at all surprised they found this hard to navigate!)
The CJC report referred (para 3.54) to the ‘clear advantages’ of pagination services such as Clinco having a role in the central electronic storage of medical records and providing access to the parties. The advantages are particularly in the context of data protection for special category data. Clinco was the first independent pagination service in the UK to invest in ISO27001, the international standard in information security, precisely so that we could offer this facility to our clients. We have provided secure electronic storage of medical records for some time. This has evolved over the last year to create a secure central resource to assist our clients to enable both expert and defendant access to the collated records.
The experts’ representatives told the CJC that they did not need to receive a chronology with their instructions. At Clinco, we are asked to prepare a chronology of relevant events in most cases coming to us for pagination. The feedback we receive from both practitioners and experts is that it saves time and costs. We have even been instructed direct by the experts themselves to prepare a chronology from the records, which speaks for itself as to the usefulness. As the whole of the CJC report is restricted to lower value, less sensitive and more straightforward cases, that may be the relevant factor. We are always willing to accept cases on a ‘sort only’ basis and our indices are sufficiently detailed to provide a clear breakdown of the evidence including dates for admissions and surgery.
Fixed costs are back in the spotlight with the report of the CJC in October 2019. As a pagination service, we have paid close attention to the issues raised in the CJC report concerning the preparation and pagination of medical records and will be discussing these in a further post shortly.
Not surprisingly, given the conflicting interests within the core group, no consensus was reached. However, agreement on process and FRC levels was brought closer, albeit with significant minority disagreement. It is likely that change will be implemented at some point in the foreseeable future and this report gives an idea as to what shape those changes may take. There are still large gaps on expert fees and ATE premiums which the report acknowledges have yet to be addressed.
The new concept of a ‘light track’ is proposed for cases where no expert evidence at all is obtained. Although one would think such a case rare in practice, this category (according to the analysis of Professor Fenn, para 3.19) accounts for 25% of lower value cases. It’s hard to see how many claims could be settled safely without at least expert evidence on condition and prognosis. Such a case would need full admission on liability and clear determination of losses. It will be interesting to see how many cases are considered suitable for the light track should this go ahead, or whether the lower proposed FRC rates (para 5.16) are viable at all.
On any analysis most cases will require expert evidence and therefore be allocated to a proposed ‘standard track’. Is the disadvantage to the claimant of proposed sequential service of expert evidence addressed by a subsequent right of reply to the defendant’s report? The proposal is highly contentious and did not result in consensus. The claimant would be required to make their case without seeing any factual or expert evidence from the defence. Any later supplement or editing by the claimant would inevitably lose impact compared with a primary position; this appears to be accepted by the CJC in introducing a retroactive ‘safeguard’ (namely unilateral right of reply). It could be argued that the Claimant is left with a fragmented case and increased costs in managing the expert evidence.
The proposed ‘mandatory neutral evaluation’ (MNE) looks like a creative and positive proposal which may receive a cautious welcome from some on both sides. To justify the cost it would need to be a highly effective tool. There remain many questions about how it would operate in practice.