CLINICAL NEGLIGENCE: An Introduction

Clinical Negligence (Claimant)
Suzanne Munroe, Switalskis Solicitors

Introduction 

Continued growth is expected in the clinical negligence sector despite a significant interruption during the height of the COVID-19 pandemic. Whilst all legal sectors were affected by the pandemic, as clinical negligence claims are inextricably linked to health care services (themselves under massive additional stress) it’s arguable that the full ramifications are yet to emerge for our sector.

COVID-19 

During the pandemic, enquiries decreased and delays in receiving medical records and expert reports slowed case progress. Lockdowns meant that experts couldn’t examine claimants, delaying reports and court timetables.

This effect on law firms reflected the pandemic’s impact on the NHS, as clinical and other NHS staff normally supporting the investigation of a claim were diverted to frontline response.

NHS Resolution (NHSR) agreed a COVID-19 claims protocol with claimant lawyers which has worked well.

The sector has swiftly adapted to remote client meetings, court hearings, conferences and settlement meetings. The use of paper has dramatically decreased.

The pandemic has put significant strain upon the NHS, and the full impact upon claims numbers isn’t yet known.

The NHSR’s 2020/21 Annual Report announced that they’ve forecast COVID-19 related claims broadly with a £0.5 billion increase to their estimate of future claims, stating it’s too soon to expect any such claims.

Some lawyers are opposed to pursuing COVID-19 related claims, concerned over reputational damage risks given public support for the NHS. However, to ensure claimants’ needs are met, any adverse impacts of the pandemic upon patient treatment must be carefully considered with regard to duty of care to provide safe systems, noting that NHSR has budgeted for claims.

NHSR claims statistics 

NHSR reported that the amount paid out in resolving claims is down year on year by £120 million, which it says is “due to an improvement in underlying trends, most notably lower claims inflation (the amount by which the cost of claims is expected to go up over time), and to the fact that – understandably – the process of investigating and resolving claims slowed somewhat during the pandemic”.

Claims resolution 

There is a mutual drive from claimant law firms and NHSR to settle claims without going to court, promoting alternative ways of resolving disputes including mediation and joint settlement meetings, which is working well. The NHSR has resolved a greater proportion of claims without formal proceedings (74.7% in 2020/21, compared with 71.5% in 2019/20).

Insights to benefit the NHS 

NHSR has appointed a safety and learning expert to work within mediation to make sure insights those claims reveal become learning tools for the benefit of the NHS.

Improvements for claimants 

There have been significant legal developments for claimants suffering life-changing injuries.

The Government changed how compensation is calculated (the “discount rate”) in August 2019 meaning claimants receive higher awards.

In 2020 Swift v Carpenter set guidelines resulting in a significant increase in damages awarded for accommodation claims.

Where there is an urgent need for suitable accommodation, the court is likely to order a substantial interim payment for purchase and adaptation work during the lifetime of the claim.

Obstetric claims dominate discussion 

Obstetric claims continue to dominate discussion and media coverage. Despite only accounting for 10% of claims, they represent around 50% of compensation paid out. Systemic issues have been highlighted in several NHS Trusts in the last two years, following national publicity of high-profile cases and recommendations made by the Health and Social Care Committee in the report The Safety of Maternity Services in England.

The Care Quality Commission (CQC) has downgraded maternity services recently only weeks after a detailed report from the House of Commons Health and Social Care Committee highlighted the issue of burnout among NHS staff. The report explained that this had been an underlying problem long before the pandemic.

The Government is now to consult on addressing the costs of clinical negligence. Recommendations include an overhaul of the dispute resolution process and the way in which damages are calculated.

In September 2021, Jeremy Hunt stated:

"We need a system where people are entitled to compensation as soon as it is accepted that a mistake was made. Under the law, the only way to get that compensation is if a court agrees that there was clinical negligence. Quite understandably, parents will fight to get that compensation and, also understandably, the doctors, nurses and midwives become defensive if they are accused of clinical negligence. It does not have to be that way. We need a system where people are entitled to compensation as soon as it is accepted that a mistake was made without the necessity to prove clinical negligence."

The high-profile media coverage of obstetric cases during the pandemic suggests that sadly there are more cases in the pipeline.

Legal Aid for inquests 

Legal Aid funding is not usually available for inquests, with families having to pay for legal representation privately. However, following the House of Commons Justice Select Committee’s inquiry into the coroner service, a bereaved family will soon be able to apply for Legal Aid (as long as they satisfy the requirements for exceptional case funding) but they will be spared a financial means test.

The prevalence of CMCs 

Claims management companies (CMCs) numbers have increased, acting as a first point of contact for claimants, signposting them to a solicitor. Specialist law firms benefit from carefully vetted, appropriate enquiries when they align themselves with specialist CMCs. Some CMCs have invested significantly in building consumer-facing brands.

Funding legal costs 

The Government originally introduced Conditional Fee Agreements (CFAs) to reduce the financial strain Legal Aid placed on the public purse. CFAs remain the primary funding source, with After the Event Insurance available to cover the costs of lost cases.

Legal Aid remains available for clinical negligence claims where a child has suffered severe brain injury during pregnancy/childbirth or shortly afterwards – deemed “exceptional” by the Legal Aid Agency. Only a limited number of specialist law firms are approved and franchised to run clinical negligence cases through Legal Aid.

Legal costs of claims and fixed recoverable costs on the horizon

The cost of resolving clinical negligence claims continues to rise.

The implementation of a fixed costs scheme is imminent, originally targeting claims up to £25,000 but potentially to extend to claims up to £100,000. The Government wants to reduce public expenditure against a backdrop of rising overall cost (compensation and legal costs) in clinical negligence claims at an “unsustainable rate”.

The aims of a fixed costs scheme are to cut litigation costs and remove uncertainty regarding the losing party’s costs liabilities.

Claimant lawyers are concerned that this scheme doesn’t compromise the availability of specialist legal representation and justice for claimants.

The future of the clinical negligence sector 

A greater level of compliance and transparency seems inevitable. Firms challenging law firms’ legal funding advice to clients are gaining traction. High-profile cases have resulted in the need for lawyers to provide clearer advice to clients on costs and deductions from compensation.

Key stakeholders should work closely together, using mediation and collaboration to resolve claims where appropriate.

Collaboration and dialogue between lawyers and clinicians can help address deficiencies in leadership and culture, cognitive biases, empathy and communication with patients.