Good luck to everyone attending tonight!
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.
A busy summer turned into a busy autumn. We’ve been hard at work in the Clinco offices, processing cases and moving matters forward for our client firms. We’ve been seeing a number of very complex high value cases which have made full use of our expertise. These cases are likely to run for many years. In most of them the patient has evolving needs under active ongoing clinical management, across many different specialties.
Updating the records and chronology is almost always needed in these long running, complex matters. Usually there will be substantial updating records from a range of healthcare providers. It’s easy over time for the fee earner to lose control of the updating process and for the records to get out of hand. Duplication or overlap can start to proliferate. The bundle can become disorganised, and hard to navigate. The knock on effect is that it’s more difficult to spot gaps in disclosure and track developments in the condition and treatment of the patient.
We’re often asked to rectify a bundle where a fee earner has taken over conduct of a matter in which this sort of thing has happened. We have seen some poorly prepared records which have been subject to various attempts to update them. We can always make it right, by doing whatever is needed to resolve the issues and get the case back into a good state.
We advocate, however, getting a good grip on the records right from the outset; and then maintaining control throughout the life of the case by updating methodically across the board at intervals of around 12-18 months depending on where the case is in terms of the expert evidence and the timetable. If you use our service from the beginning we will update efficiently – as the groundwork will have been properly and consistently carried out, so we can swiftly eliminate overlap and duplication. We have cases we have updated eight times already and the bundle remains in excellent shape.
We tend to update by extending the index and pagination, rather than insert pages. This prevents the rather unsatisfactory ‘point additions’ – 100.1. 100.2 etc, which only get worse as the years go by and the suffixes get longer. A straightforward extension of page numbering is clear and keeps the index easy to read. It is also more compatible with digital versions of the records in pdf format. If your preference is for a simple prefix per provider – eg A100 – to keep updates from that provider directly following on rather than later in the bundle, then that is easy to do and gives a good clear result.
It is important for updating to be done correctly and in an organised way. We keep an electronic version of everything we collate so when the time comes to update, we only need the new records – not the whole set back again – to eliminate overlap and complete the update. Our overall aims at Clinco are to bring clarity and help fee earners to progress their cases – updating the records is a significant part of our work on your behalf.
At Clinco we have just undergone our third annual ISO27001 audit with our best ever results. For those of you not familiar with ISO27001, it’s the international data protection standard which we have chosen to apply to all our systems and processes.
This means that when medical records come to us for pagination, whether electronically or in hard copy, our clients can be sure that they are tracked, kept securely and strictly controlled to prevent a data breach.
We are dealing on a daily basis with highly confidential personal data. So we see information security as an obligation both to the data subject and to our instructing firm – so that they can satisfy their own professional compliance requirements in relation to the outsourcing of sensitive client information.
We had excellent feedback from our external auditor. We will make our audit report available to any client wishing to review it, whether for their own due diligence procedures or simply out of interest, to see the scope of the requirements.
Opening imaging discs is a constant bugbear for those involved in clinical negligence cases. At a recent conference hosted by Inspire MediLaw, those who expressed their frustration included most of the experts and specialist solicitors present.
CDs are not a very suitable method of storing large complex graphic files, such as X rays and other imaging studies. Elsewhere, use of discs is increasingly obsolete – but they are still routinely used for disclosure of radiology.
At Clinco, we have a tried and tested system for dealing with imaging on disc. Sharon Philpott, our Records Manager, is an expert at getting into discs. Sharon has various programmes at her disposal, as well as years of experience. We have never been defeated by an imaging disc! Thank you Sharon.
Generally discs are password protected – by a password sent separately. Passwords can be frustrating but they are here to stay. Sharon checks all passwords as soon as the case reaches our office. This avoids any hold up once we start sorting the case.
It can be difficult to access the imaging even if it is not a password issue. This is a frequent problem experienced by solicitors and experts:
Once the case is complete, we will send the the radiology back to you scheduled, and cross-referenced in the chronology where relevant to the issues.
Passwords do occasionally get lost.We have a system at Clinco where, if we have been sent a password protected disc at any time over the last six years, we can provide the password to an authorised person within minutes. This is part of our free aftercare service.
The case of Hanbury, which was reported recently in the Law Society Gazette, caught my eye. Click here to see the article in question.
It’s a salutary tale. If a fatal case is being investigated, and there has been a post mortem examination, make sure the medical expert sees the post mortem report and any associated test results, for example those relating to histology or toxicology. Where the death has occurred in a secondary care setting, the medical records usually clarify the contemporaneous thinking as to cause of death and make clear if the case has been referred to the coroner.
If medical records in a fatal case are with Clinco for pagination, we will always flag up if we do not see a post mortem report (if one has been carried out) or death certificate. These documents are not always within the medical records but will need to be obtained if they are not present, so it is helpful to mention them for completeness. We would expect an experienced medical expert to do the same. This did not appear to happen in the Hanbury case. Consequently the family has had to spend many additional years waiting for a resolution of this very sad case.
At Clinco we have a lot to think about in our day-to-day work. Analysing medical records requires total concentration. However, we recently took some time out to carry out an environmental impact study on the green credentials of our workplace here at Discovery Park. In other words, just how green is our office? These are some of our findings.
Medical records are very paper-heavy. Clinco produces up to 200kg of waste paper a week. This is clean, printed paper. The papers are confidential and therefore need to be securely destroyed. We use a shredding service that meets our ISO27001 data security requirements, but also recycles 100% of our waste paper produce. This service plants a tree per 500 sacks of paper collected. Our non-confidential waste from the office is also recycled with zero to landfill. Used printer cartridges are recycled, via our print supplier.
We are proud to say that at Discovery Park our energy comes entirely from renewable sources. All electrical systems including lighting, air-conditioning and heating are provided by Kent Renewable Energy Ltd, a local biomass plant, which in total saves 100,000 tons of carbon dioxide a year.
There is always more we can do to decrease our carbon footprint, in ways that are both big, and not so big. For example, we recently started to use refill bags for our office coffee, rather than buying a new jar each time we run out. On its own, this is a small change. However together…