The human cost of medical negligence

The human cost of medical negligence

The NHS saves lives on a daily basis and is arguably one of the leading healthcare organisations in the world.

However sometimes things go wrong. Mistakes can be made either by human error or because of systems and procedures not being adequate.

These errors can be life-changing for the people involved. It could be a delay in diagnosis, mistakes made during surgery, poor post-operative care or discharging people too early. The impact on the patients affected or the need to find out what happened is what drives our clients to take legal action.

It is clear that in the current economic climate, the NHS budget is being stretched and legal fees have been earmarked as an area for cost savings. The amount in damages and costs being paid out by the NHS Litigation Authority (NHSLA) as a result of medical negligence is rising, but so too are the number of medical incidents. 

In all the discussions around legal costs, it is crucial to remember the human cost of medical negligence.

The one thing all of our clients have in common is that they would much rather the medical negligence had not happened in the first place.  These are patients who put their trust in the NHS to help them at a vulnerable time when they need medical expertise.

If they have suffered injury or illness because of negligence then they deserve the right to be able to seek recompense to try to help them make progress and to be able to live independently.

The litigation process also helps to uncover lessons which can be learnt to improve care in the future and to prevent others suffering. This is something our clients always feel passionate about.

Medical negligence cases will not succeed if there is no evidence to back them up. This takes detailed investigation and sometimes includes multiple medical experts.

But there are often times when the cases are extremely clear from the start yet defendant solicitors acting for the NHS still refuse to admit liability for months, sometimes until just weeks before the case is listed for a court trial.

We have seen examples of cases where, even when there is a Serious Untoward Incident report detailing the mistakes made, and prepared by the NHS Trust itself, the NHS Litigation Authority which handles claims, has asked us to investigate again ourselves to prove the negligence. This can take months of gathering further evidence which is unnecessary and adds extra costs for both sides as well as delaying the resolution for the patient involved.

We also have a claim on behalf of a young boy who has been rendered almost entirely blind due to alleged negligence where the NHSLA has not provided a letter of response to our allegations for over a year, constantly asking for extensions to the deadline and breaking the agreed protocol for medical negligence cases.

Sadly these are not isolated incidents. Cases like this can and should be settled much earlier in the process which would save money on legal fees and also ensures the victim of medical negligence can move on with their life much sooner – it is not fair to put them through the stress of preparing for court when the evidence is plain to see.

The Department of Health plans to consult on its plans to reduce legal costs for medical negligence claims but it is important that in doing so the interests of patients affected by acts of medical negligence – and the actions of the defendants in such cases - are taken into account as the plans are developed.

The injustice of English bereavement damages

The injustice of English bereavement damages

The shockingly low level of bereavement damages under English law was thrown into the headlines once again earlier this year following the inquest into the deaths of Robert and Christianne Shepherd who were killed by carbon monoxide poisoning back in 2006 whilst on a Thomas Cook holiday to Corfu.  Much of the press at the time focussed on Thomas Cook’s disastrous PR and handling of the case but the case also served to highlight the injustice of the very low level of damages which are often awarded following a fatal accident under English law.

The current level of bereavement damages is £12,980.  That is the price put on the life of a loved one killed in a fatal accident and fixed by statute.  In a fatal accident claim involving a child, with no financial dependents, there may also be a modest claim for funeral expenses but very little else can be claimed as a matter of law, despite the devastating impact such a loss will have on the family. 

English law also limits the class of relatives that can bring a claim for bereavement damages.  Contrast this to the position in Spain, Italy, Greece or even Poland, for example, where a much wider class of relatives are entitled to claim damages following a fatal accident and where, contrary to what many might think, the awards tend to be much higher. 

In the case of accidents occurring at a hotel or holiday accommodation, better protection is usually afforded to those who book a package holiday directly with a UK based tour operator where any claims arising from the provision of the package would be governed by English law.  However, if the claim is for bereavement damages following a fatal accident, the family of the deceased may obtain better redress from a claim brought directly against the hotel, accommodation provider or their insurers to which the law of the country where the fatal accident occurred will likely apply.

The damages paid under English law following a fatal accident, when set against the damages paid for fatal accidents in other European countries, is yet another poor reflection of the value placed on life in our society.  The government issued a consultation on this topic back in 2007 but then did nothing.  It is high time that action was taken to correct this injustice but, with a new Conservative government intent on repealing the Human Rights Act (which itself codifies the right to life found at Article 2 of the European Convention on Human Rights into English law), once again, and regrettably, reform of bereavement damages is unlikely to feature on the parliamentary agenda without a campaign effort such as APIL’s.

Fewer injured people = lower legal bills. How hard can it be for the DoH to get it right?

Fewer injured people = lower legal bills. How hard can it be for the DoH to get it right?

Whenever legal reforms are mooted the target is generally the cost of claims. Later this year we will see some proposals coming from the Department of Health to look at fixing costs in clinical negligence claims. 

In fact, we’ve had a clear indication of the Government’s mind-set on this in its ‘pre-consultation’ consultation, to which we are now finalising our response.

The recent NHSLA annual report showed legal costs increasing from £1.1 billion in 2013/14 to £1.4 billion in 2014 /15, coupled with an increase in the number of incidents. Whilst incidents are still thankfully rare, with under 0.5 per cent of NHS activity resulting in an incident, it’s clear something needs to be done. But note, the consultation later this year is unlikely to be looking at preventing injury as a route to saving money: fewer injured people, lower legal bills – you know it would make sense. But no, this consultation will be more along the lines of ‘we fear we may injure the same number of people – how can we spend less?’

Are fixed costs the answer? Fixed costs are a tricky beast. To have certainty around fee, you need to have certainty around process. To have certainty around process, the behaviour of both the defendant and the claimant needs to be controlled by protocol. If you can cost a process, you can fix a fee. Indeed, APIL along with other representative bodies proposed a fixed cost low value scheme to the NHSLA a couple of years ago, but were met with little enthusiasm at the time.

Fixing costs as a proportion of damages is more problematic. It assumes that cases that are worth less will cost less to run – there is some logic in this but it is not true in every case. It could render justified cases that are complex or harder to prove simply unviable to run. Victims who have been injured through no fault of their own will sadly be turned away as their cases are not viable. Bizarrely, it is often the defendant who is responsible for running up claimant costs – dragging cases out for years through not admitting liability or refusing to concede on points, leaving the claimant solicitor no choice but to start court proceedings, which is a very expensive way of doing business.

In APIL’s response to the pre-consultation, we’ve made the following points:

• That any fixed fee proposals should be sensible and bear some resemblance to the costs of actually doing the work;

• That any proposed process should control both defendant and claimant behaviour and give certainty of process whilst improving the claimant journey;

• That people with lower value claims should not be priced out of justice;

• That there should be recognition of the fact that claimant costs will be higher than defendant costs because the legal process dictates they do more of the work;

• That there should be recognition of the fact that claimant lawyers only get paid if they win: defendant lawyers are paid if they win or lose; 

• There should be a recognition that just because a case does not succeed, it does not mean that it was wrong to start it, or that the lawyer was being opportunistic – clinical negligence cases are complex beasts and evidence gathering, expert opinion and investigation can change the prospects of success over time;

• There should be recognition of the value of proper representation for the injured person, who is (after all) vulnerable and not an expert in this area;

• That the Government should undertake a proper impact assessment of the likely effects of the proposals on the injured person. 

It remains to be seen, of course, whether the Government will have taken any of these points on board when it publishes its consultation later this year. Yes, it’s a consultation about costs, but let’s not forget there are real people at the heart of this who have had their lives turned upside down. The objective should always be that a genuinely injured person gets the proper amount of care and compensation. 

Fixed costs in medical negligence cases – a cautionary tale from Wales

Fixed costs in medical negligence cases – a cautionary tale from Wales

Before the Department of Health proceeds further with its consultation on fixed costs, I wonder if they have discussed their plans with Welsh Health Boards and their executives to see what lessons can be learned from the system here in Wales.  Probably not.

In Wales we were promised great things for our clients when the Putting Things Right/Redress Scheme came into being in April 2011.  The scheme in Wales is voluntary and is intended to resolve cases where financial compensation does not exceed £25,000.  Staff across the Health Boards would receive appropriate training to enable them to robustly conduct and oversee investigations in a consistent, fair and timely manner.

The intention was “investigate once, investigate well”, making it easier for patients to raise concerns and to be engaged and supported in the process.  Perhaps more importantly the Health Board would demonstrate learning when things had gone wrong.

Within 30 working days of lodging a concern they would provide their final reply.  If they decided there might be a qualifying liability they would make an offer and notify the patient of eligibility to seek legal advice from a solicitor. 

The fee paid to the solicitor by the Health Board is £1,600 excluding of VAT.  Further stages are set out in the legal fees framework providing for additional fees if independent reports are commissioned.

Since then,  my firm  has not dealt with a single case where the final reply has been produced within 30 working days.  Most clients come to us for advice either when they have received an offer of compensation or the Health Board has denied a qualifying liability and they are unhappy with the response.  Many wait 12 months or longer to receive the final reply.

Summarised below are a selection of cases which could and should have been dealt with under the fixed fee scheme and been resolved within a few months to the satisfaction of the client and with us receiving a fixed fee. We removed all but one of the cases from the scheme because of the delays caused by the defendants:

• A client consented for a total abdominal hysterectomy.  Following surgery she was told that only her ovaries had been removed but the Health Board was unable to explain why. A complaint was lodged. Liability was denied. We removed the case from the scheme and served a letter of claim and an offer.  The letter of response was received eight months later. Shortly afterwards compensation was negotiated at £18,000. Had the Health Board settled as requested the cost to them would have been £19,920 (£18,000 damages and fixed fee of £1,600 plus VAT).  Instead, their total expenditure was £34,000* (£18,000 compensation and £16,000 costs) excluding their own legal costs.

• Four week delay in diagnosing fracture to neck.  Liability was denied and the Health Board refused to instruct a liability expert. The case was removed from the scheme. Damages were subsequently negotiated at £1,250. Total expenditure to the Health Board was £13,695* (£11,775 costs, £1,250 compensation) excluding their own costs. Had they acted sensibly their expenditure would have been £2,850.

• Prescribing error which led to the exacerbation of epilepsy. The case could have settled under the redress scheme for £2,000 damages and £1,600 costs but, despite all attempts by us to settle, the defendant was completely inflexible. The case eventually settled for £2,000 damages and costs of £21,000*.

• Claim on behalf of deceased elderly lady on the basis that she suffered with  pressure sores and from malnutrition. Liability was admitted six months after her death and an offer of £2,500 was made.  We advised that the offer was insufficient and put forward a counter offer of £20,000. Our costs at that stage were £500. Settlement was agreed at £20,000 almost 12 months later. Because the case remaied in the redress scheme we received a fixed fee of £1,600 when the actual costs were £7,000.

The conclusion is clear: the fixed fee scheme in Wales is not working. NHS Wales is not learning from its mistakes.  It is repeating mistakes and paying the price for that. Even when liability is admitted, cases are usually grossly undervalued. Clients are increasingly distrustful of the Health Boards and frustrated and upset by their delays and the effect on health service funds that could be put to much better use.

* These cases were concluded before the Legal Aid, Sentencing and Punishment of Offenders (LASPO) Act and include success fees and after-the-event insurance premiums.

Still time for the Government to do the right thing for injured patients

Still time for the Government to do the right thing for injured patients

So when is a consultation not a consultation? When it is a pre-consultation - an unusual beast rarely seen in the world of legal reform. It gives a flavour of what is to come but with no detail. The Department of Health proposals seek to strip costs from the budget of the cash strapped NHS, but will also benefit other wrongdoers who negligently injure people during medical treatment – private hospitals and cosmetic surgery clinics to name but a few. Is this right? During our quarterly webinar, attracting over 700 claimant lawyers, we took soundings from our members as to the winding road the department of health is navigating.The split was 50 / 50 as to whether the reforms should solely apply to the NHS, or to all defendants. 

So the million dollar question - do claimant lawyers think there is a place for fixed costs in clinical negligence cases? The response is relatively black and white. In the multi-track, a resounding 74% gave a firm ‘No’, and only 1% said ‘yes’.

In the fast track, 39% of you had some appetite, while others reserved their judgment, no doubt because the devil could be in the detail. 

But maybe it’s not about legal process, tracks and arbitrary cost limits. Maybe there is more to it than that. We asked whether costs should be fixed by virtue of value, complexity, or the type of injury. Only 17% of you opted for value as the sole definer. 41% of lawyers surveyed indicated that any scheme needs to properly take account of complexity, perhaps through exemptions for certain types of cases, or only setting costs in cases of low complexity. Injury type is also very important – with 31% of lawyers surveyed thinking that the rules should reflect this, only applying to injuries from which the client will make a recovery, rather than life changing injuries.

The proposed capping of expert fees seems biased - 99% of APIL members that responded thought that if they are to be capped, then expert fees should be capped for both claimants and defendants to create a level playing field, rather than just the claimant’s purse strings being firmly tied. And how will capping work? Would the rules set the fee the expert can charge, or the amount that the claimant lawyer can recover? If it is the latter, experts will still charge the same rates and the balance of the fee will then be charged to the client. When surveyed, 81% of APIL members said they would have to consider charging the balance to the client, reducing net damages further. Watch out for that in the impact assessment.

Preparing a law firm for the forthcoming changes required by legal reform is a challenge, particularly if changes involve staff restructuring, or changes to established income streams which will impact on budget.  Current proposals are to give law firms 6 months’ notice of impending changes. 85% of you said resolutely that was not enough time.But obviously, the impact of a start date depends on the trigger point. Traditionally, to avoid retrospective application of legislation, the date of incident is used. 50% of claimant lawyers surveyed supported this approach. This has the advantage of a trickle effect of change, as new cases come along, which can be easier for firms to manage. However, the Department of Health is seeking to speed up the rate of change and accelerate potential cost savings, by looking at the letter of claim as the trigger. 77% of members surveyed saw problems with that proposal. This is a complex area requiring more thought. Importantly, it is about making sure that clients can be properly advised as to cost liabilities at the start of their case.

So, its early days but there is scope for the government to do something measured and sensible with these reforms - to sit around the table with interested parties and build something that will work for the injured person, the claimant lawyer and the defendant. To do this, they will need to reflect on the responses and consider reducing the proposed limit of £250k to £25k as a starting point. Failing that, there is scope for fixed costs to be imposed that are too far reaching, too cheap, that will cut expertise out of the process, impacting negatively on the injured person’s ability to seek justice. 

Fairness for families of people injured or killed: why the law must change

Fairness for families of people injured or killed: why the law must change

It should not be cheaper to kill than to maim.

Sounds obvious, doesn’t it? Yet the amount of statutory damages available following a death in England, Wales and Northern Ireland is lower than the amount you can claim for a severely injured thumb.

We’re not talking about accidental death here, but needless, avoidable, premature death due to someone else’s negligence. The civil law offers a statutory sum of £12,980 to a limited number of bereaved relatives in England and Wales (£11,800 in Northern Ireland). If you suffer a severe injury to a thumb you would be entitled to claim up to around £29,000 if you live in England and Wales.

In Scotland, the law is much fairer to families, basing the level of damages payable on a proper examination of the closeness of the deceased to bereaved relatives. Research commissioned by APIL found that 80 per cent of people asked believed, perhaps unsurprisingly, that the Scottish system is fairer.

It goes without saying that no amount of money can compensate for the loss of a loved one. But if damages are to be available, then at least let’s make them fair and just, rather than an insult to the memory of the deceased.

This issue has been on APIL’s campaign agenda for many years and so we are delighted that, earlier this week, Andrew McDonald MP introduced a Private Member’s Bill which will address this postcode lottery. We will be offering Mr McDonald our full-throated support.

The Negligence and Damages Bill also tackles another long-standing injustice relating to people who suffer serious psychiatric illness when someone they love is killed or seriously injured. Again, we are not talking about accidents, but about needless death and injury caused by negligence. Nor is this about the devastating sadness of losing a loved one or seeing someone you love injured, but circumstances where that sadness develops into a recognisable psychiatric illness.

The system for claiming damages for this kind of psychiatric injury emerged from the Hillsborough stadium disaster 26 years ago. It is rigid and limited and has been considered by many to be unfair for years. For example, the law only recognises a ‘close tie of love and affection’ between parents and children, spouses and fiancées. What about brothers and sisters? Grandparents and grandchildren? Cousins?

The law also expects the person suffering psychiatric illness to have suffered some kind of shock. But what about the parent who has watched a child die slowly as a result of medical negligence? It cannot be right that a person who suffers psychiatric damage over a long period of time is denied damages when a person who suffers an illness due to one event, however shocking, is able to obtain damages. Medical science has developed enormously in the last 26 years.

It’s high time the law caught up.

Injured people should not be hoodwinked by new insurance company tactic

Injured people should not be hoodwinked by new insurance company tactic

One of our goals this year has been to try to cut through the rhetoric between insurers and lawyers with the aim of working with each other, rather than positioning ourselves as natural enemies. It’s not always the easiest option, and we have already hit a bump in the road.

Several big, well known insurers have embarked on a new approach - writing directly to the people that their clients have injured, rather than to their lawyers. They send letters asking the injured person to confirm that they have indeed instructed that firm of solicitors (because, they assert, firms sometimes make that sort of thing up). This appears to be a standard letter, rather than targeted towards cases that are in the ‘high risk of fraud’ category. The letters are strongly worded and vaguely threatening. Yes, the honest client has nothing to fear, but the tone of the letter will undoubtedly put off some genuine clients from proceeding.

The injured person is then formally required by the letter to ring up the wrong-doer’s insurer to confirm that they have indeed instructed the solicitor. There is no legal requirement for the injured person to do this, and not phoning the insurer will not prevent the claim from proceeding. But the client will not know this.

Several things are then happening. Firstly, the client is being asked to explain how they instructed the firm - i.e if a referral was made, and by whom. The insurance industry has long wanted this commercially sensitive information and is now demanding that the client provides it in order that the claim can proceed. Again, the client is actually under no obligation to provide this information.

Worse still, we are now hearing reports that when clients contact some insurers, they are then encouraged to stop instructing the solicitor and deal with the insurer direct. The insurers use the 14 day cancellation period tactically to encourage the client to deal with them direct. A measure put in place to protect consumers is now being used against them. This leaves the client unrepresented, with no clear advice as to whether the settlement on the table is good, bad or indeed ugly.

These letters do not play fair. They hoodwink the injured person into thinking that they have to do what is demanded in the letter. Even though the insurer knows that the client is represented, nothing in the letters tells the client to discuss it with their lawyer. This is not about deterring fraud, this is about saving money for the insurers through putting off genuinely injured people from pursuing a claim. It is about saving money through cutting out the lawyers to save legal costs, whilst leaving the injured person bereft of advice and at risk of their claim being under settled.  The whole point of having insurance is to compensate those who get injured through no fault of their own. Not just to offer them a cheque but to compensate them properly, following a medical examination to ascertain whether they are injured, the scale of the injuries, and how quickly they will recover, if at all.

Insurers had started to recognise that offering compensation to clients without them undergoing a medical created an environment of easy money which could perpetuate fraud. Lawyers and medics provide checks and balances. Are we going full circle back to the days where insurers try to tempt clients away from lawyers by showing them an open cheque book with no strings attached? Last time this proved short sighted - driving claims up, and ultimately premiums up.

I am hopeful to discuss such practices face to face with insurers, practices that discredit the industry and undermine the trust between insurer, lawyer and client. Facing such issues head on and having honest discussions is the best way to deal with them.