Remote court hearings and medical examinations by video have enabled litigation to progress during the pandemic and seem set to continue. One area where the benefit of technology has been particularly prevalent and will probably continue after the pandemic is over is in mediations where claimants have been happy to attend from the comfort of their home via video links.

Lower and appellate courts

Trials are likely to continue to proceed remotely and large volumes of paper look set to be replaced by well-ordered electronic bundles. However, attendance at court may be required as in SC v University Hospitals Southampton NHSFT (2020). The Trust’s application for a trial to be adjourned, on the basis that the default form of remote hearing during the pandemic was unfair, was refused. The court acknowledged that a fair hearing could take place remotely, but considered there was no legal or practical impediment to the hearing taking place in court.

Coroner’s courts

Partially remote hearings (the Coroner has to be present in Court) took place in some Coronial Areas (in others the service virtually ceased). Read our Insight on The Chief Coroner’s Guidance on remote hearings and our top tips for dealing with them. When Lockdown 1 was lifted, Guidance No. 39  directed Coroners towards routinely conducting hearings in court with appropriate social distancing measures in place. Where possible the evidence of key workers is taken remotely. As frontline services become more stretched it is possible more inquests will be adjourned if witnesses cannot attend due to illness or clinical commitments.

Medical examinations

Due to the COVID-19 infection risk, in-person expert assessments are becoming rarer and the majority of assessments by defendants are taking place remotely. Where this is difficult, for example where the injury is neurological, inevitably matters are delayed. There is a potential inequality in the parties’ positions where there is a court direction about exchange of reports and the claimant’s expert has assessed the claimant already. Defendants representatives will need to ask for appropriate extensions in good time and/or leave to serve updating reports and if necessary consider a relief from sanctions application.

Medical Malpractice Forward View 2021 

This article is part of Capsticks’ Medical Malpractice Forward View 2021. 

Read the other articles featured in this publication below: 

• Spotlight on two pending court decisions
• Decision in Maughan may lead not only to an increase in requests for an unlawful killing conclusion at inquest, but have wider consequences
• Resource issues are likely to have a significant role in determining the standard of care in claims arising during the pandemic
• Remote hearings and medical examinations are likely to continue for the foreseeable future
• Safety and learning will remain front and centre in healthcare
• The roll-out of digital healthcare is likely to continue apace
• Artificial Intelligence is likely to assist in the post-Covid recovery of healthcare services, but could be a ‘disrupter’ in healthcare law
• Research and development in life sciences will assume even greater importance as will information governance around the use of apps

Get in touch 

Capsticks advise and support medical malpractice insurers and healthcare providers on all aspect of medical law including claims, inquests and regulatory proceedings. 

To discuss how any of these issues may affect your organisation, please get in touch with Majid Hassan, Anna Walsh, or Philip Hatherall.