Would the new Government reforms close the door on victims’ access to justice?
Clinical negligence victims may be concerned by the government’s much-awaited proposal for Fixed Recoverable Costs (FRC) clinical negligence cases. Although the process requires streamlining particularly for cases where there has been a clear act of negligence from a medical professional, the method has been hotly disputed as emphasis was on the cost of the litigation rather than the benefit to the Claimant.
How Does This Affect Me?
The Government proposed a new cap “to ensure legal cost for lower value clinical negligence cases are proportionate and fair”. The proposed cap is to apply to lower value claims up to a value of £25,000. A lengthy consultation has led to the introduction of the streamlined twin-track approach to reduce costs, time in resolution and court time.
The pre-issue stage contains two tracks 1) Light Track and 2) Standard Track. The intention is to settle the claim without needing to enter the Court system.
The Light Track will be applicable to cases that do not require expert evidence and have a value limited to £25,000. The consultation believes that a claim on the Light Track would be resolved in
20 -34 weeks.
We anticipate that these cases will be where the actions of the medical professional have been investigated internally and admissions of negligence have been made. Complex matters, “claims of a sensitive nature” and multiple Defendants’ claims will fall outside of this track, so any claims which involve both GPs and hospital or more than hospital would not be included.
We believe that this would be suitable for cases arising out of missed fractures, failure to diagnose or a delayed diagnosis over six months within an A&E setting, retained placenta cases or incorrect medication provided for a short period, but this would depend on the consequences as a result of this action.
The Standard Track is for claims which are worth less than £25,000 but there have been no admissions made by the medical professional to the patient. The consultation suggested that Standard Track process will take up to 44 weeks.
At the outset, we would not be aware as to whether it would stay on the Standard Track or not and so would need to investigate the medical records thoroughly. This would involve obtaining and reviewing all the records, instructing up to 2 experts and taking witness statements before setting out the claim in a letter of claim with an offer to settle.
The Defendant will then have up to 6 months to respond to the letter of claim. In that 6-month period they will obtain medical evidence, but their response may be limited to saying that the Claimant is ‘put to proof’ without setting out a detailed response. This would be unfair as the full extent of the claim would be set out before them and the Standard Track does not even provide for an opportunity for the two sets of experts to have discussions of areas of disagreement.
Unsettled claims will go through a Mandatory Neutral Evaluation (MNE) carried out by a barrister in order to carry out a mandatory “stocktake”. This barrister would be part of an agreed “specialist” panel in a similar way that the NHSR will only attend mediators from their approved panel now or that “agreed” medical experts provide reports for the RTA/ EL claims portal. Neither process allows the Claimant to instruct experts of their preference to an important role.
Haven’t We Heard This All Before?
Law Society president Robert Bourns has stated “draft plans could see harmed patients denied the correct level of compensation .” The focus of the Government seems to be on how to reduce the level of costs being paid out for lower value claims
As recognised in the consultation report there must be a change of culture for the reforms to work. The overall behaviour of the defendants and their representatives in dealing with these claims must change so that both parties can work together and key to this will be the need for early admissions and recognition of the negligence which has occurred together with the effect of that negligence both physically and emotionally on the patient. The change in name from NHS Litigation Authority to NHS Resolution has done little to show this change in outlook is possible.
Since 2014, there has been a “duty of candour” upon the Defendant representative to respond to complaints openly and to admit to mistakes at an early stage. We have found that in the majority of the responses to the complaints that we have seen, there will be admissions in relation to poor service or a lack of resources with a willingness to learn from their mistakes but a failure to admit negligence or that the consequences from the error have led to further injuries. It is rare for there to be an early admission of negligence and/or causation for the subsequent injury following internal investigations, which has meant that a full examination of records and expert reports are necessary.
We would also use the example of the early notification scheme for the reporting of the maternity claims which was launched in November 2017. One of the clear aims of the scheme was to reduce the number of maternity claims which represented 9% of claims but 50% of the expenditure. The Government stated that early notification of the claim ought to allow for early investigation of the incident with an intention to admit mistakes early and reduce the cost of the claims associated with the incidents. It has been nearly 5 years since the introduction of the scheme and whilst we have seen a rise in earlier investigations, in the majority of the reports they have been inconclusive as to whether the incident could have been avoided and/or whether the outcome could have been different which has meant that further investigation has been required.
When the Government puts forward their figures in relation to the excessive costs of claims, they will also include the damages awarded, the cost of issuing the claim, the cost of the medical reports and barristers fees together with any VAT all within the same figure of profit costs which will inflate the picture. Early admissions which are envisaged for the Light Track would certainly assist in reducing the costs of the claim as the majority of these expenses would not be required. However, the work required for a claim would be the same whether it was on the standard track or not
Where there are early admissions by Defendants in straight forward claims, it may mean that claims are settled much more quickly which would be of great benefit to Claimants. However, there are serious concerns that there are risks that claimants will be denied justice if legitimate claims are no longer financially viable because of the way the reforms are implemented in the current form.
At AWH, we have received a number of enquiries from members of the public who are not happy with explanations which have been provided by medical professionals or are seeking further answers as to why the incident has occurred. We may attend inquests or investigate queries which are more of a nature of poor service rather than negligence but we would not know until we have looked at records and spoken to experts.