IN June, representatives from the Law Society attended the offices of Wilson Browne in Northampton to meet with Partner and head of clinical negligence/personal injury Louise Tyler.
Jack Dunkley, Relationship Manager and Kate Fairhurst, Civil Justice Policy Advisor, contacted Louise in order to discuss proposed reforms to clinical negligence work. Louise had already had a similar meeting with Robert Bourns, President of the Law Society earlier in the year.
The reforms include proposals to introduce fixed recoverable costs to clinical negligence claims up to the value of £25,000. The original plan was to apply fixed fees to claims up to the value of £250,000 which would have included claims for people who have been seriously injured.
The Government proposals are aimed at reducing legal costs. The cases that this will mainly affect are unfortunately those claims involving the most vulnerable in society such as the elderly. Other claims that will be severely affected will be for couples who have experienced a stillbirth.
Louise is both a member of the Law Society and AvMA (Action against Medical Accidents) Specialist Panels. She is also a member of SCIL (Society of Clinical Injury Lawyers). All of these organisations have been working hard to challenge the government proposals.
One of the main issues is that clinical negligence work has already faced a number of changes in the last few years. At the beginning of April 2013 Legal Aid was abolished for clinical negligence claims apart from those involving brain damaged babies. Also, changes to the recovery of success fees and ATE all have had a huge effect on how these cases are funded and what costs are to be met by the defendant on conclusion of the case. Because clinical negligence claims on average take three years to conclude one of the main arguments has been that to introduce fixed recoverable costs now is too soon given that we have not yet seen savings that will have come about as a result of LASPO.
Clinical negligence claims are different from personal injury claims because the burden is on the claimant not only to prove breach of duty of care but also causation and that in the context medical treatment can be complex and sometimes it requires the assistance of more than one medical expert. The process is actually the same regardless of the value of the claim whether it is worth £10,000 or £100,000.
Clinical negligence specialists report that even in the strongest of cases there is often unwillingness by the defendant to make an early admission which inevitably leads to increased legal costs. The result is that claimant lawyers have to fully investigate their claims. There can be no short cuts in the investigation and the claim has to be fully presented to the defendant before they will even consider the claim. It is then often necessary to commence court proceedings and increased court fees have introduced yet more increased costs to the process.
The National Audit office are currently investigating the NHS Limitation Authority (now known as NHS Resolution) and in particular their behaviour in the litigation process. Recently the NHS published figures which showed that where the claimant issued court proceedings in 2015/2016 claimants succeeded in almost 76 per cent of their cases which means that the defendants failure rate where court proceedings are issued is 76 per cent of cases. If claimant clinical negligence lawyers had this failure rate we would be out of business!
Clinical negligence claims can be distinguished from other fields of litigation as they require the claimant to prove negligence against a professional highly trained body. The burden of proof is high. It is more difficult to predict the outcome and the cases are decided on the evidence of medical experts and the role of the expert is more important in clinical negligence than any other field of litigation. This is why fixed recoverable costs in clinical negligence claims if they are to be introduced must be evidence based. Any reforms must include all of the stakeholders working together to come up with a workable procedure whereby claimants are able to access justice and lawyers are able to continue representing those clients and to be remunerated appropriately for it.
We also discussed with the Law Society representatives the rapid resolution redress scheme for severe avoidable birth injury claims. This is another Department of Health consultation. The purpose of this scheme is to create a voluntary administrative compensation scheme for families affected by a severe avoidable birth injury. The idea is to put it into a scheme which is not adversarial. The difficulty with this scheme is that it would be administered by the NHS and there would be a panel of independent experts. The family would be at the mercy of those who effectively were responsible for causing the damage to the child in the first place. The claimant’s rights, impartiality and independence are taken away as a result of this scheme and it seems to me that few families would want to trust the NHS to be responsible for administering their child’s claim.
Since meeting with the Law Society representatives we now have had Lord Justice Jackson’s review of civil litigation which includes fixed recoverable costs in clinical negligence claims. He has recommended that the Civil Justice Council should in conjunction with the Department of Health set up a working party including both claimant and defendant representatives to develop a bespoke process for clinical negligence claims initially up to £25,000 together with agreed fixed recoverable costs for such cases. This is probably as much as we could hope for as clinical negligence lawyers.
There is still uncertainty going forward and it is not clear whether the government will welcome Lord Justice Jackson’s comments and how the Department of Health will respond.
As we get to grips with the ever-changing legal landscape in which we work, we continue on a daily basis to battle on behalf of our clients to provide them with access to justice to bring about change and raise standards in medical care and to compensate them for their loss or injuries.
