Tuesday, 30 June 2015

A Clinical Negligence Solicitor Writes....

 In response to my blog on reducing costs in clinical negligence cases I have received this (in my view brilliant) insight into the frustrations of conducting clinical negligence cases for claimants. It comes from a solicitor who wishes to remain anonymous. 

He writes:

Your blog entry about saving money in clinical negligence claims struck a number of my nerves, it will possibly surprise many that even Claimant lawyers rail against the waste of public funds. There is no benefit to anyone in stringing out these cases, the real saving in costs would be to deal with them properly, from both sides. Costs squandered by inefficiency and pointless dispute in cases which ought to proceed quickly and co-operatively are painfully obvious to anyone in this field, and much of the frustration must, I would suggest, be aimed at NHSLA. Were I in charge of the asylum, the following concepts would be first on my list:

1.       Duty of candour - remember that? Nobody seems to. It's in the current pre-action protocol. Medical professionals who have made a mistake are supposed to come clean about it. 

Many of my clients, probably more than 10%, tell me the reason they are at my door at all is that a subsequent doctor, or more often a nurse, has had a quiet word and sent them to see us. This is usually a decent interval after the event, months or more, and the effect is to create anger where none existed. There is a percentage of claimants who would truly not have made a claim, at all, had the treating doctor been frank about the situation at the time. Moreover, cases are tough enough on causation that admitting errors would probably not change a great deal anyway, Claimants cannot create harm that don't actually exist, no matter how many apologies a patient receives. With that in mind, someone should take a proper look at the PALS responses that patients receive. Some of those are so convoluted and patronising that they literally drive the patient to my door. I appreciate the referrals, but you could avoid it quite easily. Never underestimate the determination of some claimants if they feel that something is being hidden from them. This is particularly true of the parents of deceased children, there is nothing more likely to cause litigation than the perception that someone is trying to hide the truth of what happened. Such parents don't want the money, they want to know why. Once they know why, they are so far into the case that they can't get out, there is a bill to pay.

2.       The new pre-action protocol and NHSLA mediation concept look like a perfect match, but just try getting someone to actually engage. I sent an exploratory half dozen LONs shortly after the revised protocol appeared, and so far we have had just one acknowledged, at all. We suggest ADR in many cases, because it could have a real place and function in these cases, engaging in constructive discussion would be a tremendous short-cut through some of the nonsense. The sole take-up for mediation in the past 6 months came on a case in which NHSLA suggested it having just wholly denied the claim. Days later they then admitted breach and causation. Meaning they didn't mean to deny it when they denied it. So why do it? Can you imagine the trouble Claimants would get into were that position reversed? The move to cut out some of the investigative costs by getting an early letter to the Defendant is very appealing, I don't want to fund medical reports if there is going to be an admission on a point. There is, however, one requirement, and that is for someone to answer the letter you send. At present, sending a LON seems to be getting us as far as opening an window and screaming random medical terms into the night.

3.       I am not sure how the structure the NHLSA operates these days can possibly serve them. In practice what we end up dealing with is nothing short of maddening, and it is deeply inefficient. I send the letter of claim to a Trust, the Trust send it to the NHSLA. NHSLA already have it because we sent them a copy too, as they asked, but tell us that they have to wait for the Trust to send it to them. Often it is lost. A deep silence descends until the day LOR is due, when there is a phone call to ask if they may have more time. That call is probably from, say, DAC Beachcrofts, who tell us they have now been involved for about an hour and can we tell them what reports we have? We gladly engage with them, and try to help out with explanations, disclosure, even to discuss damages, but they are actually only involved to hire an expert, they can do no more. NHSLA and the Trust won't engage without talking to the solicitor, who is not retained to assess the case or talk to you, so nobody can move.

Sometimes they are told to make an offer, but they can't tell you about the reasons or breakdown, which you have to go the NHSLA for, and they don't know. When the case is denied, and whether it really should be denied or not seems irrelevant, we then go back to deal with NHSLA for a while, and get nowhere. I don't know how a lawyer for the NHSLA can possibly do their job, they seem to be utterly hamstrung and unable to agree anything without running it past a manager somewhere, which is not how you treat an intelligent and experienced solicitor who knows precisely how to move a case along. Please let Defendant solicitors actually be solicitors. For the most part we offer extraordinary co-operation - and I can point to cases in which we have sent reports in breach, causation, and C&P at a stage that many litigators would recoil in horror at - and still the case is denied and delayed. We then go round in circles until we all run out of time, give up and serve proceedings and get an embarrassed call from Beachcrofts, probably not the same person as before, to start their investigation shortly before the Defence is due, and settle it somewhere around allocation. Why is that we need a case to get this far to make proper progress?

4. Acumension - we all know what the score is here. They will argue costs were too high, two months will be wasted trying to get them to understand that this was a medical negligence claim and that we won, two concepts that seem alien to them until we make our application for payment on account of costs after sixteen polite requests are ignored. That application will meet with frustration from the District Judge who hears it, wanting to know who on earth refused to make this payment and why the parties can't deal with these things without wasting the Court's time. Then we can squander another £10000 per side assessing why the case took so long and why we issued proceedings in such an "obvious" case. It's not a saving if you spend £20000 to knock £20000 off a bill.

These are not extreme examples exaggerated for effect, this is what we are seeing in most cases.  I should revel in the opportunities it presents, but the truth is that I am aggrieved at the absurd waste of (public!) money occasioned by someone's attempt to try to manage these cases on the cheap. It does not work, you need a person with a brain to consider what to do to achieve the best outcome in this specific case according to the facts, the personalities, and the costs involved.

I recently concluded a fatal case, the Defendant being a large PLC. The case settled quickly, for a premium. We communicated throughout, well. Full explanation of the error that caused the death, apology, remedial steps taken, all laid out and made logical sense, nowhere for a Claimant lawyer to go digging, it was all there. The overall bill was less than a similar case against NHS by, I estimate, £30000, because they dealt with it intelligently. The client was made an offer that could not be refused, and my investigation was truncated because the errors were set out by the Defendant. They didn't do it to be nice. They did it because it was the cheapest way to get rid of me. It can be done.

Monday, 22 June 2015

Saving Costs in Clinical Negligence Claims

The government is reportedly looking for new ways to reduce costs in clinical negligence claims. It is floating the idea of using a fixed costs regime. Most clinical negligence litigators will tell you that this is an area of litigation wholly unsuited to fixed costs. Each case is unique and is liable provide new and often unexpected challenges. The imposition of fixed costs will hinder the pursuit of justice for patients who have suffered avoidable injury at the hands of the state. I hope that in its attempt to reduce legal costs the MOJ and DOH will not portray clinical negligence lawyers as the enemy. The government would learn much from listening to claimant practitioners.

Many practitioners have told me that they have noticed a change in approach from the NHSLA in the last year or so - a more robust defence of claims. This might result in the defeat of some claims that would otherwise have been settled with payment of costs, but the fear is that it it will increase costs in many more cases which ought to have been resolved, or resolved earlier.

The following alternative suggestions have been made to me on twitter. By repeating them I am not endorsing them all, but at least some of them ought to be considered by the government if it is serious about reducing legal costs in this field.

1. The NHS should work to reduce the number of injuries caused by negligence. This is not a flippant suggestion. It goes to the root of the problem. Patient safety does not have to entail defensive and conservative medicine. Claims and costs can be reduced by adopting systems of work which will enhance patient safety, particularly in fields such as obstetrics where negligence can lead to catastrophic injury and correspondingly large compensation payments.

2. Patients should be informed immediately when something goes wrong and injury may have been caused due to negligence or error. Many clients - in particular in more modest compensation claims - have told me that if only the doctors or nurses had "come clean", admitted that a mistake had occurred, explained how it had happened and apologised, then they would have accepted it and would not have contemplated litigation.This is not just about having suitable systems in place, it is about individual professionals acting professionally and providing a proper service to their patients. When mistakes are made they should be candid about them.

3. NHS bodies should answer complaints meaningfully and candidly. If a complainant feels "fobbed off" by a response to a formal complaint, they are more likely to contact a solicitor; they are more likely to feel hostile to the NHS body that has not only injured them but has failed to acknowledge the harm done. The NHS should not under-estimate the anger and resentment that can be generated.

4. Defendants should commission early independent expert investigation when a claim is intimated.

5. Defendants should make early, full admissions of liability where appropriate. Where a full admission is not made, they should seek to identify clearly the issues that remain in dispute.

6. Defendants should take active steps to effect of early settlement.

7. Devise no win no fee arrangements for Defendant Solicitors. I am not sure, personally, that this would work to reduce costs in practice, but the broader point is that Defendant representatives should have incentives to achieve early resolution of claims at minimal cost.

8. Remove costs budgeting for clinical negligence claims. Many feel that this takes up additional time and effort. However, it might be said that the way to avoid costs budgeting is to introduce fixed costs. Where costs are in issue, the NHSLA should seek to avoid the "stand-off" that often occurs. It should engage positively to resolve costs disputes at an early stage. It should make generous payments on account of costs in order to avoid interest on costs payments.

9. Expand the availability of legal aid for clinical negligence claims.

10. Abolish agency fees for medical experts.

11. Repeal the court issue fees hike. In many cases the £10,000 issue fee will ultimately fall at the door of the NHS. By raising the court issue fee by thousands of pounds, the MOJ is directly increasing the legal costs of clinical negligence claims and is taking money from the NHS.

12. Stop throwing away costs by opposing reasonable applications for interim payments etc.

13. Avoid procedural point-scoring which tends to increase the Claimant's costs ultimately payable by the Defendant.

14. Revisit the way in which care reports are prepared and presented. Perhaps the same point can be made about many expert reports and the process of joint expert meetings.

15. Engage with claimants, claimant lawyers and defendant lawyers, to learn points of best practice. If we talked to each other more, we could learn to trust more and work together to reduce legal costs.

Tuesday, 9 June 2015

When the facts change....

Lord Saatchi may be seeking to re-introduce his Medical Innovation Bill unchanged, but the common law he blames for preventing a cure for cancer, has moved on.

In January 2015 the House of Lords sent the Medical Innovation Bill to the Commons. The Bill sought to provide doctors with a defence to clinical negligence claims brought by their patients.

In March 2015 the Supreme Court gave judgment in Montgomery v Lanarkshire  Health Board [2015] UKSC 11. This important case developed the common law of clinical negligence in relation to the issue of consent. It has clarified how the law of negligence affects the doctor-patient relationship.

In June 2015, following the general election, Lord Saatchi has re-introduced the Medical Innovation Bill to the House of Lords, and has proposed that a parliamentary device be used to avoid debate of the Bill in the Lords.

The (new) Bill may be  identical to the (old) Bill as it was in January 2015, but the law it seeks to improve upon has changed. As was once famously said, "When the facts change, I change my mind. What do you do, sir?"

Lord Saatchi has always sought to justify his bill on the grounds that doctors are uncertain about the law of negligence, scared of being sued and therefore opt for conservative rather than innovative treatment. Well, all they need to do is to read the judgment of Lords Kerr and Reed (with whom the other Justices agreed) in Montgomery and in particular the passage beginning at paragraph 81.

Lord Saatchi needs to acknowledge that the law on informed consent has been reviewed and developed by the Supreme Court since his bill was last before parliament

The Bill expressly preserves the law of consent to treatment: "the doctor must ... obtain any consents required by law to the carrying out of the proposed treatment". I presume that the intention is therefore to preserve the common law requirement that doctors should obtain patients' informed consent to treatment. Certainly Lord Saatchi has never stated otherwise. However, he needs to acknowledge that the law on informed consent has now been carefully reviewed and developed by the Supreme Court. The doctor's role is to provide the patient with material information on which they can make an informed decision about treatment. It is not the doctor's "decision" to provide treatment (save in certain circumstances referred to below), it is the patient's decision to elect and consent to undergo a certain treatment. The following extracts from the judgment make this clear:

81. ... the law ..., instead of treating patients as placing themselves in the hands of their doctors (and then being prone to sue their doctors in the event of a disappointing outcome), treats them so far as possible as adults who are capable of understanding that medical treatment is uncertain of success and may involve risks, accepting responsibility for the taking of risks affecting their own lives, and living with the consequences of their choices. 

82.  In the law of negligence, this approach entails a duty on the part of doctors to take reasonable care to ensure that a patient is aware of material risks of injury that are inherent in treatment. ... [there is a]  fundamental distinction between, on the one hand, the doctor’s role when considering possible investigatory or treatment options and, on the other, her role in discussing with the patient any recommended treatment and possible alternatives, and the risks of injury which may be involved. 

83. The former role is an exercise of professional skill and judgment: what risks of injury are involved in an operation, for example, is a matter falling within the expertise of members of the medical profession. But it is a non sequitur to conclude that the question whether a risk of injury, or the availability of an alternative form of treatment, ought to be discussed with the patient is also a matter of purely professional judgment. The doctor’s advisory role cannot be regarded as solely an exercise of medical skill without leaving out of account the patient’s entitlement to decide on the risks to her health which she is willing to run (a decision which may be influenced by non-medical considerations). Responsibility for determining the nature and extent of a person’s rights rests with the courts, not with the medical professions.

It is the patient's decision, not the doctor's, whether to undergo treatment

The Medical Innovation Bill puts the doctor at the centre of the decision making process.

"s.1(2) It is not negligent for a doctor to depart from the existing range of accepted medical treatments for a condition if the decision to do so is taken responsibly."

But as the Supreme Court has said, it is the patient's decision, not the doctor's, whether to elect to undergo treatment. The doctor's role is to enable the patient to make an informed decision.

The Bill does not reflect the law as has been clarified by the Supreme Court since the House of Lords last had a chance to debate the Bill. It sets out what steps a doctor has to do to take the decision responsibly rather than what steps a doctor has to take to allow the patient to make an informed decision.

"s.1(3) For the purposes of taking a responsible decision to depart from the existing range of accepted medical treatments for a condition, the doctor must (a) ....."

There are circumstances when a doctor, rather than a patient, makes a treatment decision: in an emergency for example. There may also be rare cases where there is a so-called "therapeutic exception" to the rule that the patient should be fully informed of material risks. In debate in parliament, Lord Saatchi made it clear that the Bill was not intended to apply to emergency cases. Clearly it is designed for elective treatment - where the doctor and patient have time to discuss the risks and benefits of treatment options.

Some will object that in reality it is doctors that make the treatment decisions. The way a doctor informs a patient of the risks and benefits of treatment options will produce the desired response. However, the Supreme Court has said loud and clear that medical paternalism is dead.

Of course the ideal of unfettered patient choice is a myth. There are funding, regulatory and systemic restraints on patient choice. But within those constraints, the patient is sovereign.

I have always opposed this Bill but it is now clearer than ever that it is based on a misconception about the doctor-patient relationship and about who makes the decisions about treatment. Ironically it is the common law Lord Saatchi has condemned for maintaining the status quo, that has developed. It is the Bill that is stuck in the past.