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CLINICAL NEGLIGENCE: An Introduction

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Anthony Gold Logo
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2017/18 has been another eventful year in clinical negligence. Much of what was promised in 2017 has still not yet arrived. Some things, however, have finally been completed. The long-awaited National Audit Office report into rising clinical negligence costs was published in September of 2017.

The report, entitled “Managing the costs of clinical negligence in trusts,” seeks to explain why the NHS’s spend on clinical negligence cases rose from £0.4 billion in 2006/7 to an annual figure estimated to be £1.6 billion today.

The report itself concluded a number of factors were at fault: increased damages due in part to longer life expectancy but also increases in the heads of claim, a higher number of claims and increased legal costs. There is in fact very little review of this but it would appear that claimant lawyers were blamed. The National Audit Office did not appear to take the opportunity to look at the conduct of the defendants and their solicitors. The report did not deal with the issue that some costs were incurred because NHS Resolution was simply settling indefensible claims sufficiently early. As a result the conclusions and analysis of the report were not universally welcomed.

The issue of fixed costs still hovers in the background in clinical negligence. Lord Justice Jackson published a report, “Review of Civil Litigation Costs, Supplemental Costs and Fixed Recoverable Costs,” in July 2017.

The consultation was published and at that stage it was anticipated that there was a possibility of a scheme coming in October 2018. Lord Justice Jackson had recommended that the Civil Justice Council and Department of Health establish a working party with both claimant and defendant representatives to develop a bespoke process for clinical negligence claims. The current view is that a scheme is unlikely to come into effect until 2019 at the earliest.

After a long-awaited pilot, NHS Resolution launched a new mediation service in December 2016. It is probably too early to say whether the scheme itself will be well supported and reduce costs and time overall. For those who seek non-monetary assistance the mediation scheme is a reasonable idea. The possibility of seeking damages for financial compensation without a lawyer present (one is not compulsory) is not one which some lawyers would necessarily welcome, however, so the usefulness of the scheme for many will be questioned.

As usual the NHS published the annual review of litigation. The report indicates that only two-thirds of cases are resolved without the need for court proceedings. It still notes, however, that those going to trial have the odds stacked against them. The NHS is more successful than not at trial. In those cases where proceedings are taken, however, over two-thirds succeed in awarding damages to the claimant. There has not been much change in this over several years.

There has, however, been a reduction in the number of new clinical claims supported. This has fallen for the third year running and is now not much more than the figures for 2012/13.

The greatest number of claims received relate to orthopaedic surgery injuries. 10% of claims still relate, however, to obstetrics, with a further 5% for gynaecology. Obstetrics also represents almost 50% of the clinical negligence damages and costs.

Not just relating to clinical negligence but the discount rate remains at issue. In February 2017, the Lord Chancellor reduced PIDR from 2.5 to -0.75. This caused significant consternation amongst the defendant lawyers, who have sought to battle this change in position. Forced to consider this matter further, the government has introduced legislation in the form of the Civil Liability Bill, to establish a regular review of the rate, the first to be within 90 days of the legislation coming into force and at least once every three years after that. The rate should be set with reference to “low risk” investment rather than the very low risk investments at present. The Bill is due for a second reading in the House of Commons.

Once again making an appearance is the rapid resolution and redress schemes of severe birth injuries. This proposal has been floating around for decades but the government introduced a draft scheme in March 2017. Consultation for that has taken place. In November 2017, the Department of Health published a summary of consultation responses most of which indicated that the scheme should include early investigations conducted by independent professionals. The final policy was due to be published in spring 2018 and is awaited at present.

In terms of legal cases, claimants continue to suffer some attacks on all fronts. In terms of costs, NHS Resolution took on the claimants in Peterborough & Stanford NHS Trust v McMenemy & Others [2017] EWCA CIV 1941 dealing with proportionality of ATE insurance.

The role of experts continues to come under the spotlight in all areas of litigation. An example would be HJ v Burton Hospitals NHS Foundation Trust [2018] EWHC 1227, where the role of the single jointly instructed expert was reviewed and determined to be lacking.

Conduct continues to be essential to issues. Manna v Central Manchester University Hospitals NHS Foundation Trust 2017 EWCA CIV 12 led the way with indemnity costs as a result of the defendant conduct. In Calderdale Huddersfield NHS Foundation Trust v Sandip Singh Atwal [2018] EWHC 961 the NHS successfully brought contempt proceedings against a claimant who had exaggerated the effect of his injuries.

Witness evidence of both defendant and claimant came under the spotlight in JRM v King’s College Hospital Foundation Trust [2017] EWHC 1913 as did the state of medical records and the problems that arose as a result in Velarde v Guy’s & St Thomas’ NHS Foundation Trust [2017] EWHC 1250. The role of the jointly instructed expert and the weight that can be attached to the statement also came under the spotlight in HJ v Burton Hospital NHS Foundation Trust [2018] EWHC 1227.

Despite initial indications of change, NHS Resolution appears to be working in much the same way as its predecessor. Whilst clearly the government and defendants are seeking to limit costs, clinical negligence errors continue and attention as to the cause and prevention of this appears less of a priority. It is to be hoped that NHS Resolution addresses this issue with the enthusiasm with which it has challenged costs and defended cases in the coming years.