Costs legacy of decades-old blunders begins to rise

An article on the BBC website today reported that the NHS medical blunders dating back more than two decades are still costing millions of pounds a year in compensation.

It has been suggested that the figures show just how long some families have to wait for compensation payments.

Delay

It needs to be taken into account that the majority of birth injury claims are exceptionally complex and, by virtue of the nature of the injuries and the age at which those injuries are sustained, resolving claims too early can very easily lead to Claimant’s being significantly undercompensated.

For example, the true nature and full extent of any brain damage sustained at birth may not become apparent until the child’s teenage years. Up until this point the child may have been hitting all of their developmental milestones, walking, talking and so on and the big risk in these cases is to ignore the fact that with brain injury difficulties can arise as the child develops. In these cases a ‘wait and see’ approach is often required.

Accordingly, whilst it is true that some families have to wait several years before the child’s claim is concluded it is essential that however the assessment of the appropriate damages figure is reached it is based upon cogent and reasoned expert medical evidence insofar as the child’s future prognosis is concerned. It does not necessarily follow that because the child has reached the age of 5 without any significant behavioural or cognitive difficulties that it is safe to assume that the child will not develop any such difficulties at a later date.

Interim damages

In addition, it should be borne in mind that the current compensation system entitles Claimant’s (in those cases where liability is admitted) to interim payments to ensure that a child’s support and therapeutic needs can be met whilst the case is still ongoing.

Costs

The article points out that legal costs made up more than a third of the overall NHS negligence bill in the past five years. In this regard a Department of Health spokesman was quoted as saying “We’re ensuring taxpayers’ money is spent effectively by taking action against law firms creaming off excessive legal costs that dwarf the damages recovered.”

The issue of legal costs in medical negligence claims is one which often stirs up much debate. However, I find the suggestion that law firms “cream off excessive legal costs” in these cases offensive.

Why are costs higher in clinical negligence cases?

 

It is true that in some clinical negligence cases the costs payable to the patient’s lawyers exceed the level of compensation which the patient receives. However, there are many reasons why this may be the case. For example: –

 

• Clinical negligence cases are complex. Each case is unique and presents difficult and challenging issues.

 

• Medical records are often extensive and require careful and detailed review.

 

• Multiple reports may be required from a number of experts in different fields of expertise. It must be remembered that the burden of proof is on the Claimant to establish breach of duty (i.e. that a negligent act/omission has occurred), causation (i.e. that the breach of duty has been causative of a worsening or deterioration in a patient’s condition) and the extent of the losses sustained. All of these “hurdles” require input from one or more medical experts.

 

• Complexity does not equate to value. Lower value claims are not necessarily easier or more straightforward than higher value claims. Why should a person with a lower value claim be any less deserving of compensation than a person with a high value claim?

 

• The conduct of the NHSR and/or their solicitors. Every clinical negligence solicitor will have been faced with the situation where exhaustive attempts to resolve a claim by way of negotiation have been made prior to the commencement of Court proceedings but where the NHSR has steadfastly refused to make any admissions or entertain any offers of settlement. Then, after Court proceedings have been commenced but before the claim reaches the stage of a final Trial the NHSR make concessions and offers and the claim is ultimately resolved. In this situation the costs are inevitably many times higher than they would or indeed should have been had sensible attempts to resolve the claim been made prior to the commencement of Court proceedings.

 

In addition, it is worth pointing out that some cases would be avoided in their entirety if the Hospitals and Trust’s concerned were more open and honest about mistakes which had been made. For example, in my experience lawyers are often seen as a measure of “last resort” by patients or their families who have exhausted the Trust’s own complaint process but who are still completely unaware of what went wrong and why.

The current costs regime

Under the current costs regime in addition to payment of their compensation patients are only entitled to payment of their “reasonable” legal costs which, in the absence of agreement being reached between the Parties, are assessed by a Costs Judge in order to determine the level of costs which the NHSR should pay. In other words, any costs which are paid by the NHSR are paid either following agreement being reached or after the costs have been carefully scrutinised by a Judge.

In addition, since 1^st April 2013 the costs of pursuing claims, including all clinical negligence matters, are subject to much greater  scrutiny from the Courts who are now obliged to pro-actively manage and control the extent of the legal costs that the Parties to a dispute can incur. In every case the Court will make a Costs Management Order recording the level of costs that the Court considers it reasonable and proportionate for a Party to incur. When reaching its decision the Court must (amongst other things) take into account the value of the claim.

If the costs recorded in the Costs Management Order are exceeded then they are not recoverable from the other Party.

In other words, there are already a number of mechanisms in place to prevent the NHSR (or any other paying party for that matter) from having to pay any costs which are excessive in amount.

Other ways of reducing costs in clinical negligence claims.

There are numerous other ways in which the costs of clinical negligence claim could be reduced. For example: –

• Saying sorry. In come cases the simple recognition that a patient suffered injury because of negligence or an explanation of what happened might be enough to help an injured patient move on.
• Learning from its mistakes. The most cost effective way for the NHSR to save money on the amount of compensation and legal costs paid would be to avoid causing unnecessary harm in the first place. There is a need for a change in culture. The focus should be on the increase in occurrences of negligence and the reasons for this. Reducing the number of avoidable errors would reduce the number of potential claims – saving significant costs in the long term.
• Early admissions of liability/delay. Where unreasonable medical care has injured a patient compensation should be paid quickly and fairly, obviating the need for prolonged and costly litigation. However, liability is rarely admitted in full or at all by the NHSR at an early stage in the claim and even when admissions are made it is still routinely argued that the breach was not causative of any loss. Early admissions would also significantly reduce the amount of expenditure on expert evidence.
• Accreditation/specialisation. Accreditation could become mandatory for lawyers undertaking medical negligence cases. This would deter incompetent or inexperienced legal representatives from dealing with these claims and would avoid the NHSR incurring additional costs in investigating and responding to unmeritorious claims.

Summary

Medical negligence claims are usually complicated. These cases require a lot of investigation and evidence gathering.

The bottom line is that paying compensation only arises because Hospitals and doctors continue to cause avoidable injuries to their patients. It ought to be entirely possible for costs savings to be made without removing access to justice. The claims process must be improved first to tackle the issues which make medical negligence cases take so much time and work in the first place.