Clinical Negligence litigation – time for change

13th December 2021

Former Health Secretary Jeremy Hunt has proposed an alternative approach to clinical negligence claims, with a view to securing earlier compensation for affected families and implementing changes within the NHS to ensure mistakes are not repeated.

Hunt, who is now the chair of the House of Commons Health and Social Care committee, suggested in a webinar hosted by Irwin Mitchell in November that, because the Court process takes so long to deal with clinical negligence cases, hospitals are not learning from their mistakes or, at best, there is delayed implementation of necessary changes.

His proposal is for the UK to follow in the footsteps of countries like Sweden, where ‘when a child is born severely disabled they are able to access compensation without having to get a court to agree there was clinical negligence… You get that compensation as long as the clinicians agree there was a mistake made [but] they don’t have to accept there was clinical negligence.’[1]

The current system is certainly not working for patients, their families or for the NHS. However, as recognised by AvMA in their September 2020 report to the Health and Social Care Committee[2], ’clinical negligence litigation is the symptom, not the cause, of problems in maternity safety.’ Litigation provides a means of ensuring injured parties and their families are fully compensated for the losses they have suffered and the future care they will need, and a move away from this ‘will not improve patient safety’, as clinical negligence claims ‘should and can act as a driver for change’. Litigation is valuable not just because it helps to secure full compensation for affected parties, but because it helps hospitals to learn from their mistakes.

It is not the adversarial element of clinical negligence claims that prevents resolution, but rather the time and costs involved in getting cases to the resolution stage. The vast majority of cases still take far too long to settle and blight the lives of everyone involved for years. By way of example only, a recent £27m case involving Alder Hey hospital took 12 years and settled two days before trial.[3]

It is encouraging that some lawyers are now reporting a ‘cultural shift’ towards early resolution from both sides.  This is, perhaps, partly due to the findings of the June 2021 report from the CJC on compulsory alternative dispute resolution[4]. The CJC concluded that mandatory ADR is lawful, and that it ‘should no longer be viewed as ‘alternative’, but as an integral part of the dispute resolution process [which focuses] on ‘resolution’ rather than ‘dispute’.

The CJC say ‘more work is necessary’ to determine the appropriateness of compulsory ADR in clinical negligence claims.  However, early resolution of liability, causation and quantum in clinical negligence claims is already being achieved without recourse to the courts process.  Indeed, it is prescribed by the Rules, and just requires lawyers for all sides to be willing to work together in the best interests of their clients and the NHS.

Independent Evaluation is one such mechanism facilitating the rapid resolution of claims.  It functions even in the most complex of cases, often resolving them within a matter of weeks rather than years. Cases referred to IE are assigned to an ‘Evaluator’, who is a subject matter expert in the specific field, capable of guiding the parties through a forensic analysis to a determination of the likely outcome of a civil trial.  Evaluators are particularly well suited to these tasks, as the majority are Deputy High Court Judges and, crucially, they are completely independent from both parties in the dispute.

It is widely agreed that independence expertise is fundamental when it comes to determining a resolution in clinical negligence cases.  In their 2020 report to the Health and Social Care Committee[5], AvMa states that ‘there needs to be assurance that all cases of avoidable harm in maternity care are subject to an appropriate and impartial forensic examination’. They cite the current Early Notification Scheme operated by NHS Resolution as an example where a lack of independence may adversely affect the outcome for the claimant, saying:

‘The Early Notification Scheme operated by NHS Resolution whilst welcome in principle, also has some significant flaws. The role of NHS Resolution is to manage and defend claims against the NHS but under ENS, NHS Resolution is in effect acting as the adjudicator on claims they are at the same time responsible for defending. That is an untenable position and highlights the importance of independence being a fundamental principle of any such scheme.’

As such, it is vital that any alternative to the courts process offers the same impartiality as a trial. The focus of Independent Evaluation is always on determining the right resolution, as would be given in Court, based on a forensic analysis of the evidence by a truly independent subject matter expert.

Questions remain as to whether and how Jeremy Hunt’s proposals may be implemented and, if so, the processes to be followed.  Any debate about moves away from the present sub-optimal status quo is very welcome, but of little comfort to the thousands of families or the NHSR presently embroiled in disputes.   Focus cannot be purely on rapid payment of compensation alone; it is imperative that an independent specialist ensures that the most severely injured patients receive settlements that truly reflect the harm done as a result of clinical negligence. Whilst it is in everyone’s interests to settle claims as quickly and efficiently as possible, the involvement of lawyers throughout the process ensures that all the facts on both sides are considered, and that both the claimant and defendant are adequately represented and supported throughout the process. This protects all parties involved in a claim.

AvMA states that ‘for all its faults, litigation has allowed for independent forensic consideration of cases where the family is empowered by specialist legal representation and expert evidence. This often results in recognition of failures in patient safety which would not be recognised if the original considerations of the NHS itself, or its legal and clinical advisers, had been relied upon.’

A move away from the courts process does not have to mean a move away from lawyers, or the vital role they play in supporting both sides in clinical negligence litigation. With IE, solicitors and barristers for both parties are heavily involved both in the Directions phase and in the Evaluation, working closely with both the Evaluator and with their clients. They ensure that the Evaluator is provided with all of the evidence needed to arrive at a settlement which is reflective of the individual facts of the case and the severity of the harm done.

The purpose of litigation is to get to the heart of the matter, to rectify harm done and for those responsible to learn from their mistakes. IE offers the opportunity to do all this and more, without the anxiety and delays of the court process, enabling everyone to move on with their lives safe in the knowledge that justice has been done. To start the process of resolving your claim, call Jonathan Bishop on 07549511436, or email [email protected].

[1] https://www.lawgazette.co.uk/news/clinical-negligence-reforms-could-prevent-infant-deaths/5110463.article

[2] https://www.avma.org.uk/wp-content/uploads/HSC-Committee-submission.pdf

[3] https://www.lawgazette.co.uk/news/lawyers-anger-as-27m-nhs-claim-is-settled-two-days-before-trial/5110558.article

[4] https://www.judiciary.uk/wp-content/uploads/2021/07/Civil-Justice-Council-Compulsory-ADR-report-1.pdf

[5] https://www.avma.org.uk/wp-content/uploads/HSC-Committee-submission.pdf