In all potential personal injury and medical negligence claims it is essential to obtain the client's medical records at an early stage, not only to be able to obtain a medical report on condition and prognosis but also to establish that the 'accident' caused the injuries complained of.In both types of claim, the records may be required to enable an expert medical report to be prepared for service with proceedings.

They will certainly be required for the assessment of damages at a later stage.In medical negligence claims, it is vital to obtain the records from all sources for the additional purpose of investigating whether allegations of professional negligence can properly be made.

The records are an essential starting point for the patient who may only know that 'something has gone wrong' and may have no idea whether this was unavoidable or excusable or the result of medical treatment.

The records will need very careful review by the appropriate experts and the solicitor before a decision can be made on whether there is the basis of a claim.The introduction of the Access to Health Records Act 1990 has made it somewhat easier to obtain medical records for treatment since 1 November 1991.

However, the process all too often has remained slow and costly, with unnecessary arguments over strict legal entitlement.

Not infrequently months will pass before records are disclosed, or disclosure is incomplete.

It is therefore still sometimes necessary to make applications for pre-action discovery, particularly if limitation may be an issue.The costs of pre-action discovery in medical negligence cases have been a matter of concern, particularly for the legal aid fund, bearing in mind that they cannot normally be recovered from any other party, except as an item of special damages if the subsequent claim is successful.

Although the court has power to order that the costs of the pre-action discovery application be paid by the defendant, this only applies if delay has been excessive (see Hall v Wandsworth HA [1985] The Times, 16 February).Many hospitals, health authorities and trusts require the release of records to be authorised by a senior executive, in-house lawyer or claims manager, following consultation with the relevant consultant or professionals.

This can contribute to delay.

A working party of the Law Society's civil litigation committee was therefore set up to develop a simple and cheap system for the disclosure of medical records.

This committee included solicitors who act regularly for plaintiffs and defendants, in-house lawyers and claims managers from health authorities and representatives of AVMA and the Law Society.

It has produced a standardised protocol for use by plaintiff's solicitors.

It has been endorsed by the Law Soci ety's civil litigation committee and by the Department of Health following consultation with a wide range of interested bodies.

The protocol consists of: 1.

An initial application form addressed to the medical records officer, including details of the patient, treatment, and against whom the claim will be made.

Where a negligence claim is threatened against the hospital receiving the form, it will provide a summary of what may be alleged, to enable investigation to be instigated if it is deemed appropriate at this early stage.2.

A first response form from the hospital confirming willingness to dispatch the requested records within six weeks and providing details of copying charges etc.3.

A second response form from the hospital for the dispatch of copy records with a provision for noting any problems on locating records or reasons for not disclosing any part of them.The intention is that in nearly all cases the requests for disclosure will be processed by a medical records officer as a matter of routine.

It will be an internal matter for each hospital to decide what, if any, consents should be obtained from treating doctors and whether a particular matter should be referred for investigation by a doctor, claims manager or solicitor.

The strict entitlement for disclosure of medical records is governed by ss.33 and 34 of the Supreme Court Act 1981, ss.52 and 53 of the County Courts Act 1984, the Access to Health Records Act 1990 and the Data Protection Act 1994.

As the use of the protocol is voluntary, the rights of any party to make application to the court under these Acts is not prejudiced.

It is however intended that parties using this protocol will not require plaintiffs to follow the strict statutory requirements and will meet the initial request with simple disclosure within six weeks.Plaintiffs' lawyers doing medical negligence work have long felt that many cases could have been resolved without litigation if proper investigation has been carried out without the involvement of solicitors and with the implementation of a fair hospital complaints procedure.

The use of this standard protocol still envisages the involvement of solicitors on behalf of the patient but in time even this may not always be necessary.The protocol is being widely distributed to solicitors, hospitals and health authorities.

Copies are available by postal request, sending a stamped addressed envelope or DX numbered A4-sized envelope, to Shirley Knight, Law Society Services, 50 Chancery Lane, London WC2A 1SX, DX 56 London/Chancery Lane.

Enquiries about its use can be addressed to Suzanne Burn, secretary to the civil litigation committee.1995