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The long-awaited final report of Ms Donna Ockenden, Senior Midwife was published earlier this week, on 30 March 2022.  This report follows on from Ms Ockenden’s previous report published in December 2020.

 

Ms Ockenden was assisted in preparing the report by an independent team of medical professionals in various areas including obstetrics, neonatology, obstetric anaesthesia, physician, cardiology and neurology.

 

The review forming the basis of the report is the largest ever inquiry in the history of the NHS into a single service.

 

Whilst Ms Ockenden clearly acknowledges the difficult and much appreciated work carried out by NHS staff throughout the country, which continues in often challenging circumstances, especially considering the Covid pandemic, she has highlighted some truly shocking failures in the quality of care provided and governance at the Trust.

 

The report also highlights failures from bodies external to the Trust to effectively monitor the care provided by the Trust.

 

Background

 

The Independent review was commissioned by the then Secretary for State for Health and Social Care, the Right Honourable Jeremy Hunt MP in 2017.   The review was prompted by the parents of Kate Stanton Davies and Pippa Griffiths whose daughters had died at the midwifery-led units run by The Shrewsbury and Telford Hospital NHS Trust, as a result of the care they received in 2009 and 2016 respectively.

 

As noted by Ms Ockenden:

 

“This review owes its origins to Kate Stanton Davies, and her parents Rhiannon Davies and Richard Stanton; and to Pippa Griffiths, and her parents Kayleigh and Colin Griffiths. Kate’s and Pippa’s parents have shown an unrelenting commitment to ensuring their daughters’ short lives make a difference to the safety of maternity care.”

 

The review was originally concerned with 23 families’ cases, as identified by the parents of Kate Stanton Davies and Pippa Griffiths to Mr Hunt.  The number of cases and the scope of the review increased substantially and Ms Ockenden’s review took evidence from 1,486 families, regarding 1,592 clinical incidents mostly occurring between 2000 and 2019.  Although the earliest incident occurred in 1973 and the latest in 2020.

 

Report Findings

 

As noted above, the report found repeated failures in the quality of care and governance over the period considered, together with failures of external bodies to effectively monitor the care provided.

 

The review found repeated errors in care, which led to injury to either mothers or, their babies.  All aspects of clinical care were considered in maternity services.

 

The review identified continued failures to follow national clinical guidelines in many areas for example, the monitoring of fetal heart rate, maternal blood pressure, management of gestational diabetes or resuscitation.

 

The report presents specific incidences including those of Kate Stanton Davies and Pippa Griffiths and the strikingly similar circumstances of prior cases.

 

There were delays within the Trust to escalate matters to more senior specialists and a failure to work collaboratively across disciplines.  The results of these systemic failures were truly tragic and led to serious medical conditions such as sepsis, hypoxic ischaemic encephalopathy and death.

 

The report highlighted a fear of midwives to express their concerns to consultants within the Trust, resulting from poor working relationships.  This culture of fear was combined with staffing problems and a lack of training.  These difficulties were played out in front of families, which put additional stress on parents at times when they were at their most vulnerable.

 

The review detailed repeated circumstances where families were not treated with the sympathy or, compassion they should have expected.  With clinicians unprepared for follow up discussions, not dealing appropriately with complaints, giving inaccurate information and even blaming the parents themselves for the outcomes.

 

Within the Trust there was an emphasis on promotion of natural birth, with a reluctance to perform caesarean sections.  This directly resulted in babies dying during or, shortly after birth or, alternatively being left with catastrophic, life-long heath conditions.

 

The review’s consideration of clinical governance processes shows that investigatory processes were not followed to a standard that would have been expected. As noted by Ms Ockenden:

 

“The reviews were often cursory, not multidisciplinary and did not identify the underlying systemic failings and some significant cases of concern were not investigated at all. In fact, the maternity governance team inappropriately downgraded serious incidents to a local investigation methodology in order to avoid external scrutiny, so that the true scale of serious incidents at the Trust went unknown until this review was undertaken.”

 

This meant that there were missed opportunities to learn from the incidents occurring within the Trust with continued and repeated serious mistakes and omissions, leading to further avoidable injuries and deaths to Mothers and babies.

 

Figures

 

The report graded the care provided in four categories as follows:

 

0, Appropriate, Appropriate care in line with best practice at the time

1, Minor concerns, Care could have been improved, but different management would have made no difference to the outcome

2, Significant concerns, Suboptimal care in which different management might have made a difference to the outcome

3, Major concerns, Suboptimal care in which different management would reasonably be expected to have made a difference to the outcome

 

The review listed five major incident categories; Maternal death, Stillbirth, Hypoxic Ischaemic Encephalopathy, Neonatal death and Cerebral Palsy/Brain damage.

 

The review found that for the care provided in categories 2 and 3, and consequently avoidable outcomes, there were Nine maternal deaths, 131 still births, 70 neonatal deaths and 94 cases of brain damage.

 

Future Developments

 

The report identified more than 60 specific Local Actions for Learning for Shrewsbury and Telford Hospital NHS covering nine areas and another 15 Immediate and Essential Actions for all maternity services in England.  The aim of these actions is to improve all maternity services in England, including financing a safe and sustainable maternity and neonatal workforce and ensuring appropriate training for all those involved in maternity services.

 

The report acknowledged the recent announcement of £127 million by NHS England for maternity services but noted that this was significantly short of the £200-£300 million recommended in June 2021 by the Health and Social Care Select Committee.

 

Comment

 

The individual mistakes identified within the investigation are, sadly, nothing out of the ordinary and are regularly encountered in our work.  What is striking, however, is the shear scale of the problem and the number of families affected, suggesting a significant cultural problem within the trust.

 

If you have been affected by failings in maternity care, then please feel free to contact us for free and informal initial guidance on the options available to you.

Clinical Negligence litigation relies on the opinion of medical experts, to identify and establish breach of duty, causation and quantum issues. Many of these medical experts work in both public and private sectors and many of whom have been called forward to healthcare’s front line in the fight against Covid-19. This has created a shortage of available experts to give evidence on liability and/or quantum to support both the Claimant and Defendant.

In 2020, a new protocol was implemented to encourage positive behaviours from Claimant and Defendant lawyers. This protocol can be relied upon throughout the duration of the Covid-19 pandemic and recovery.

This protocol covers issues relating to limitation and extensions of time, telephone calls and emails, service by email (including new proceedings), medical examinations of clients for condition and prognosis reports, exchange of evidence, interim payments, settlement meetings and mediations, BACS payments, cost budgeting, and hearings including adjournments.

[Further information on the protocol can be found at: https://resolution.nhs.uk/wp-content/uploads/2021/03/Covid-19-Clinical-Negligence-Protocol-2020-1.pdf ]

 

How Covid-19 has affected us:

The impact upon disclosure of Medical Records

The first stage of a Clinical Negligence claim is for us to access and review the medical records with our experts.  Some NHS trusts and GP practices have risen to the challenge and have continued to provide records within the statutory timescale of 30 days (GDPR 2018), whereas others have struggled significantly, with records taking many months or more to materialise.

 

It is a difficult call to make to seek a Court order for disclosure (which is the only way to force the issue), when we are all acutely aware of the challenges posed by the pandemic.

 

The impact on limitation

The Covid-19 protocol allows for an unchallengeable extension to limitation until 3 months after the end of the protocol (for participating organisations).  This has the potential to lead to a significant number of cases where limitation occurs on the same (as yet unknown) date 3 months after the end of the protocol.

 

In order to avoid this backlog, we seek to agree a fixed limitation date for each file and review and extend it further if necessary.

 

The impact of self-isolation and working remotely

Like many companies, the pandemic led to a shift in our working dynamics, with all staff initially forced to work remotely.

 

Since the easing of restrictions many of our staff have been making a phased return to the office. We are also pleased to return to client-facing meetings, where necessary, socially distanced in one of our meeting rooms.

 

More recently, the NHS Track and Trace app has caused its own challenges with ‘pings’ to numerous members of the team, forcing them to self-isolate for up to 10 days.   Thankfully working remotely is no longer an upheaval and our usual service remains.

Joining the firm in 2021 brought new challenges. Starting a new job in the in the midst of remote working was somewhat daunting as many of our colleagues have yet to return to work in the office. We found that we may know a name from through email, or over the phone, but it proves difficult putting a face to that name when people do attend the office.

 

The impact of Covid-19 on our work in the future

Covid-19 has caused significant delays within the healthcare sector, with many individual’s treatments being pushed back. Recent news suggests that a potential 13 million patients may be waiting for routine procedures and investigations to be carried out in the next 12 months [https://www.bbc.co.uk/news/uk-57793122].

 

These delays will undoubtedly lead to an increase in avoidable poor outcomes for patients and their families.

 

For legal advice relation to Clinical Negligence contact us at medical@bttj.com

 

Whilst all types of surgery involves an element of risk, as a patient, you have the right to receive a certain standard of care. In most cases, the standard of care provided is exceptional and the outcomes are positive. However, not all types of surgery may go as planned and sometimes it can result in an injury.

Surgical negligence covers a variety of cases. It may occur when the medical team fails to provide the appropriate standard of care either before, during, or after surgery. If this has resulted in an injury, then you may be able to make a claim against the hospital. Our medical negligence solicitors can help you to investigate whether or not this is the case.

If you think that you might have been the victim of surgical negligence, then it’s important to act as soon as possible. The details of the case will be clear in your mind and the records may be easier to find. Generally speaking, there is also a three-year time limit for most types of personal injury claims. However, there are also exceptions to this time limit for children under the age of 18 and patients who are unable to claim on their own due to their capacity and/or disability.

 

What’s Involved in a Surgical Negligence Claim?

In order to be successful in bringing a claim, you will need to prove that the surgery you received fell below a reasonable standard and that you have suffered an illness or injury because of this. These types of claims can be quite complex as the details of your medical treatment may be debated by different experts.

To increase your chances of making a successful case, your solicitor will need to gather as many details as possible and they will also need to use medical experts to show that the surgery performed was negligent and resulted in causing your illness or injury.

 

What’s The First Action?

It is open to you where you think you may have been a victim of surgical negligence to make an official complaint. Making a complaint may be helpful when it comes to building your case and it won’t affect any future legal action.

Once you have submitted a formal complaint, you should expect to receive a reply either by written means or verbally within three working days. The reply should include an agreement to meet and to talk about how your complaint will be handled and how long it is likely to take.

 

Initial Information Gathering

When investigating your case, your solicitor will need to gather information about your illness or injury in order to decide what the best way of moving forward with your claim is. As an example, here are some of the details that your solicitor will try to get:

  • The reason for needing medical treatment.
  • The names of the medical staff that were involved.
  • Details of any witnesses. (Can also include friends or relatives)
  • Details of any later consultations.
  • Details about whether you made an official complaint or a complaint directly to the clinician.
  • Obtain your medical records

 

Getting Appropriate Medical Knowledge and Expertise

To help support your claim, your solicitor will find an independent medical expert with the right knowledge and experience to be involved in your case. Although the medical expert may be referred to as part of your ‘team’, the medical expert will have a duty to provide an independent and honest opinion to the Court.

Your medical negligence solicitor will choose the medical expert that knows the area of medicine relating to your case and will be able to present their findings in court.

 

Contact BTTJ Medical Negligence for Surgical Negligence Claims

We understand how upsetting it can be to talk about what has happened and how overwhelming the consequences of negligence are. At BTTJ Medical Negligence, we have a team of legal professionals and medical negligence specialists who are exceptionally experienced at handling these types of cases. All advice and information are treated with total confidentiality, compassion, and care.

If you have suffered due to medical negligence and you would like to discuss your surgical negligence claim, then please get in touch with us to see how we can help.

You can call us on 0800 032 2474 or you can send us an email here.

image of doctor in office

It is probably little known to most that General Practitioners (GPs) do not have insurance to treat you.

Instead, GPs are required to be a member of a “Defence Union”, which provides discretionary indemnity arrangements in the case of a negligence claim.    However, as this arrangement is discretionary, and either the GP or the Defence Union can avoid their indemnity requirements, it means that if you are injured by a General Practitioner’s negligence, they might not have the cover in place to meet your claim for damages.

The Government has recently carried out a consultation and plans to replace existing discretionary indemnity arrangements with regulated cover, backed by the Government and similar to the arrangements with NHS doctors and hospitals.   The case made by the Government to switching to a regulated model is that under the current discretionary system – and unlike commercial insurance companies – there is  no contractual obligation to meet the cost of any claim against the professionals they cover and no legal obligation to ensure they have reserves to cover the cost of claims.

The Government plans to ensure that all healthcare professionals in the UK are covered by an appropriate indemnity scheme so that all clinical negligence cases are covered.

Not surprisingly, GPs and the Defence Unions are opposed to the proposals, fearing higher insurance premiums and that it will take away a significant amount of funding from the Defence Unions.

 

The present discretionary indemnity arrangements also extend to hospital doctors carrying out private consultations and treatment.   It is clear from the Ian Paterson (Breast Surgeon) experience that under the present scheme Defence Unions will try to avoid their financial responsibility if they can.

Unfortunately,  I have experienced over the years a number of cases where both GPs and private doctors have not had the appropriate indemnity cover for the treatment they are providing or that the Defence Unions have refused to indemnify the doctors under the discretionary scheme, leaving injured people without any real redress.

 

Tom Barnes

Head of Medical Negligence

 

About the Author

Tom is a partner of BTTJ and Head of the Medical Negligence department.  He is a member of both the Law Society Clinical Negligence Panel and the Action against Medical Accident panel and has been recognised by the Legal 500.

If you need any help with medical negligence you can call Tom on 024 7653 1532 or email tom.barnes@bttj.com

 

NHS Resolution, which was formerly NHS Litigation Authority, has published research on the motivation of patients making a compensation claim when something has gone wrong with their healthcare.

The research, which was conducted in partnership with The Behavioural Insights Team (BIT), surveyed 728 patients who had made a claim and looked at the incident that had occurred, how the patient felt it had been handled, how any subsequent complaint had been handled and the factors that led to the patient making a claim for compensation.  BIT also did an in-depth telephone interview with 20 past claimants.

The findings show that, in general, the research participants were not satisfied with the reactions of NHS staff following an incident or how their complaint was handled within the NHS.

It found that:

  • 63% of patients who responded felt that they did not receive an explanation for why the incident occurred.
  • Only 31% said they felt they had received an apology.
  • 71% of the people responding did not think that their healthcare provided undertook any actions to investigate the incident in the first instance.
  • Only 6% of respondents felt that actions were taken that would prevent the same incident happening again.
  • The majority rated the response to their complaint as ‘poor or very poor’ in terms of accuracy, empathy, speed of the response and level of detail.

 

It also found that both internal and external factors motivated patients to make a claim.  Personal motivations included:

  • Wanting to prevent similar things happening to others.
  • Wanting to receive an apology or an explanation for the incident, or to trigger a detailed investigation of the incident.
  • Wanting the clinicians involved to be held to account.
  • Emotional responses (e.g. frustration and anger) brought about by poor incident or complaint handling.
  • Financial compensation.

External motivations included:

  • Suggestions from NHS staff that making a claim would be appropriate
  • Advertising
  • Conversations with friends, family and wider social network

 

Helen Vernon, who is Chief Executive at NHS Resolution, said “This research confirms that claims for compensation can sometimes be made in the search of answers, which could have been provided when the incident occurred. Being open with patients when they suffer avoidable harm and taking tangible steps to learn from what happened are essential. We would like to thank the patients who spared the time to contribute to this valuable research, which will help us to build on our work with the NHS to improve the response when things go wrong.”

 

Full details of the research conducted can be found on the NHS Resolution website.

Solicitor Cheryl Bereza & Paralegal Angus Buchanan answer some commonly asked questions about medical negligence claims in a new series of videos.

In the first 2 videos, they take a look at how you go about making a claim.

 

 

 

 

 

If you would like to discuss a medical negligence case, please get in touch with us.

 

 

A No Win, No Fee Agreement is also known as a Conditional Fee Agreement and enables you to make a claim for compensation, with no financial risk to you and without paying any legal fees upfront.

In the event of your claim being unsuccessful for any reason, you will not have to pay any legal fees either to us or your opponent.

This means that those who might otherwise have been unable to pursue a claim with the worry of escalating legal costs are now able to do so without concern.

At BTTJ we offer No Win, No Fee Agreements on all types of Medical / Clinical Negligence cases.

 

If you have a query about a medical negligence claim and how No Win, No Fee works, please get in touch with me on 024 7653 1532 or email me at lynette.walsh@bttj.com

 

About the author

Lynette Walsh advises and represents clinical negligence claimants and has more than 14 years experience.  She is also an Accredited Member of the Association of Personal Injury Lawyers and Law Society Panel.

Action against Medical Accidents (AvMA) is a charity for patient safety and justice.  They provide support and  free independent advice to people who have been affected by medical accidents.

They have made the video below which highlights how they were able to help in a case of medical negligence.

 

BTTJ Solicitors Tom Barnes and Richard Stanford are both AvMA panel members.  If you feel you have suffered from medical negligence, please get in touch.

 

 

Coventry solicitor Richard Stanford has been awarded membership of the AvMA (Action Against Medical Accidents) Specialist Clinical Negligence Panel.

Richard, a medical negligence specialist with BTTJ, had to meet a series of 50- plus stringent criteria before his appointment to the panel, looking at experience, knowledge, case management, client care and monitoring client satisfaction, among other areas.

Along with his colleague Tom Barnes, a partner at BTTJ who is Head of Medical Negligence, Richard is the only other AvMA panel member within Coventry and Warwickshire.

Established in 1982, AvMA pioneered the concept of clinical negligence as a separate specialism within legal practice, setting up the panel soon afterwards to put Claimants in touch with specialist expert lawyers.

Today the panel is recognised as an essential quality mark for clinical negligence practitioners who place clients at the centre of their practice.

As part of his role on the panel, Richard is expected to represent the interests of referred (and indeed all) clients as well as the interests of AvMA as an organisation representing medical accident victims – including lawyers’ support group meetings, submission of case reports for the AvMA Medical and Legal Journal, and contributing to AvMA’s policy work.

Richard said: “To be a member of the AvMA Specialist Clinical Negligence Panel is arguably the accreditation that is most sought after by lawyers in this field and demonstrates that my knowledge and expertise has been externally and independently validated.”

“This is reassuring for clients but also lets defendants know that they are dealing with someone who really knows their stuff.”

“Medical negligence represents a key part of BTTJ and is a specialism we are known for nationally. We always try to work with new clinical negligence clients in their own homes – wherever they may be in England and Wales. We have access to excellent barristers and independent medical experts who we instruct regularly, so can usually select the most appropriate individuals to provide advice and evidence for each specific case.”

Richard’s career started at the Law Society when he also studied to achieve a commendation in the Graduate Diploma in Law and Graduate Diploma in Legal Practice, as well as a distinction in a Master of Laws Degree in 2009. Richard joined the Clinical Negligence Department at BTTJ in 2010.

He has wide ranging experience in clinical negligence cases, including orthopaedic (including amputation), oncological, urological, infection, injury during surgery and the management of long term conditions such as diabetes and Crohn’s Disease.

Richard handles cases from inception to completion, including trial where necessary.

Richard has also been an affiliate member of the Society of Trust and Estate Practitioners since 2012 and can advise upon and create personal injury trusts to protect settlement monies from being means tested by the state.

If you need any help with medical negligence, you can contact Richard directly on Richard.Stanford@bttj.com or  024 7653 1532.

Concerns over operations performed by a Consultant Neurosurgeon at University Hospital in Coventry, Mr Hussien El-Maghraby.

Following a request to review four individual cases, Surgeons from the Royal College of Surgeons carried out an inspection in September 2017  where it has been suggested that they criticised two brain surgery operations where the patients went on to die.

Mr El-Maghraby was stopped from performing two surgical procedures consisting of complex spinal operations and brain surgery whilst the patients remain awake without further training and mentorship.

You can read the full BBC story here

 

With the introduction of the Civil Liability Bill into the House of Lords this week, the Ministry of Justice has produced their response to the report of the Civil Justice Committee (CJS) and has rejected the argument that there is insufficient evidence to overhaul how the discount rate in personal injury claims is set.

What is the discount rate?

Clinical negligence compensation awards are intended to put the Claimant in the position that they would have been ‘but for’ the negligence. In the most serious cases, the Claimant is awarded a lump sum to cover future loss of earnings, care and future treatment and is expected to invest these funds and receive a return to use for their future needs. The Discount Rate is a figure used to calculate how much Defendants should pay Claimants in cases of life changing injury.

On 20 March 2017, the discount rate was reduced from 2.5% to -0.75%, significantly increasing the amount of compensation that a Claimant could recover.

Why is the discount rate being reviewed?

There has been much debate given the reduction of the discount rate last year. If the discount rate is set too high, the value of the return will not keep up with inflation and the Claimant may not be adequately compensated. A Claimant with life changing injuries is likely to be financially dependent on the lump sum awarded for the rest of their lives. If the rate is set too low, the Claimant could be overcompensated with the taxpayer footing the bill.

So is the Claimant expected to look for riskier investments to achieve a better return and what return can be expected? The balance has to be struck.

The MOJ’s response to the Civil Justice Committee’s recommendations

Claimants have historically been treated as more cautious investors as they are expected to secure their future financial position.

The Government has confirmed that the overriding objective of setting the rate remains to support the 100% compensation rule, i.e that the aim is to neither under-compensate nor over-compensate the Claimant by ensuring that the Claimant receives the money that they are expected to need and that this is fair for both parties.

The Government has highlighted a need for Claimants to move away from a ‘risk-free’ approach which tends to ‘create excessively large awards of damages’ and that this is ‘unrealistic’. At the same time the Government shares the concern of the Committee that the setting of the rate should not result in significant under-compensation for the most vulnerable Claimant.

The government has not dismissed the proposal that setting different rates for different cases may be appropriate.

Although the decision to set the discount rate is likely to continue to rest with the Lord Chancellor, the Government has agreed with the proposal that an expert panel (comprised of an actuary, an economist, an investment manager and an expert in consumer affairs as relating to investments) will assist with the process of setting the rate. The Lord Chancellor’s report and the expert panel’s recommendations would be published at the same time once the rate to be set is decided.

Despite criticism, the government has advised of their intentions to continue to retain the proposed interval of review at 3 years, although it is unclear how this will work in practice given that the discount rate applies to the most serious cases which typically take 3-5 years to conclude.

The Lord Chancellor will however, at least be required to provide the reasons for setting the rate and the soon to be formed expert panel will have a role in analysing the data and considering actual investment behaviour.

The Government is particularly keen to encourage periodical payment orders and that Claimants are adequately advised of these as an option.

 

An orthopaedic injury refers to an injury of the bones, muscles and joints of the human body.

A practitioner specialising in orthopaedics will often look after patients that have suffered bone fractures,  who need joint replacement, ligament reconstruction surgery, hand, shoulder and elbow surgery, foot and ankle surgery and back and spine surgery.

Orthopaedic negligence is when a practitioner makes an avoidable error which causes injury to the patient. Examples of orthopaedic negligence include: inadequate assessment of a patient before surgery, surgical errors, including mistakes in placing prosthetic joints, using an incorrect treatment such as a partial knee replacement when a full replacement is needed, inadequate postoperative care leading to infection, misdiagnosing fractures, poor operative technique and damage to nerves or circulation due to medical procedure.

If you feel you have suffered as a result of orthopaedic negligence and may have an orthopaedic injury claim, please get in touch.

Our team of expert clinical negligence solicitors are on hand to advise you on the legal steps that are available to you.

 

Gynaecology is the medical practice dealing with the health of the female reproductive system.

Gynaecological treatment covers a number of areas including cancer, medical management of a chronic condition, surgery or post-natal care.

Most women will need gynaecological care once in their lives, the investigations and treatments carried out are all common medical procedures.

The main procedures that can lead to gynaecological negligence as a direct consequence of a practitioner’s incompetence are: removal of an ovarian cyst, pelvic organ prolapse, endometrial ablation, hysterectomy (full or part uterus removal), salpingectomy (fallopian tube removal), myomectomy (uterine fibroid removal), oophorectomy (ovarian removal), colposcopy, abortions, sterilisations and dilation and curettage.

Gynaecological procedures carry risks including but not limited to incontinence following surgery, perforation of the uterus during the insertion of a contraceptive coil, failed sterilisation, damage during laproscopic investigations or surgery, injury to bladder, bowel or uterus during hysterectomy, unnecessary hysterectomy following a caesarean section, defective consent to medical procedures and infection resulting in loss of childbearing potential and damage to womb or abdominal wall.

If you feel strongly that you have suffered a gynaecological injury as a result of treatment you have received or as a result of a failure by a doctor to diagnose a condition then you may have a potential negligence claim.

Our dedicated team of female solicitors will provide expert guidance to helping you succeed and win you the compensation that you deserve.

 

Members of the Society of Clinical Negligence Laywers (SCIL) have campaigned at Westminster against fixed fees for medical negligence claims.

The chairman of SCIL, Stephen Webber, said ‘We believe the most important issue here is patient safety – if there can be improvements and lessons learnt then the level of negligence will be reduced. That must be the starting point for reform’

Lord Justice Jackson published a report in July on fixed costs in which he said a working group should be set up.

A response to a consultation on fixed costs for clinical negligence claims is still being prepared by The Department of Health.

The full story, as reported in the Law Society Gazette can be read here.

consultation

Lord Justice Jackson’s review of civil litigation, including a recommendation for fixed recoverable costs in clinical negligence cases up to £25,000, has now been published and can be accessed here.

However the charity Action against Medical Accidents (AvMA) have called the civil litigation review disappointing and are concerned about the effects on patient safety as well as access to justice.

AvMA’s reaction is as follows:

AvMA is disappointed that Lord Justice Jackson’s report  fails to truly recognise the impact that imposing fixed recoverable costs on clinical negligence cases will have.
Although he recommends limiting the fixed costs regime to cases with damages of £25,000 or less, this represents the majority of clinical negligence claims. Included within this are very serious and complex claims including stillbirths and child deaths; negligent neglect of older people and claims for people with mental health and learning disability problems.
Clinical negligence claims are far more complex than personal injury claims and imposing fixed costs – no matter how long and inappropriately the claim has been defended – means that many of the claims will not be feasible. Even if a claimant did find a solicitor to represent them and won, they could end up losing most of their damages to meet costs which traditionally would have been met by the losing side.
Peter Walsh, Chief Executive of AvMA said:
“We are disappointed that Lord Justice Jackson has not accepted the evidence he was given and has not fully appreciated the unique challenge of clinical negligence claims. If fixed costs do go ahead it is imperative at the very least that there are exceptions for all fatal cases, cases including children and adults who lack capacity.
“We welcome the fact that if fixed costs for clinical negligence do go ahead, this should be via a ‘standalone’ scheme developed in collaboration between stakeholders. That is better than the Department of Health simply imposing its own rules.”
AvMA is concerned about the effect of the proposals on patient safety as well as access to justice.
Mr Walsh explained:
“Often it is only through people being able to challenge NHS denials through legal action that the NHS is brought to the realisation that it made mistakes. If people are not able to do that, it will mean opportunities for learning will be lost. Your hospital and mine will be less safe as a result.”