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.


  1. Absolutely spot on. If I thought there was an ethical way to do it, I would love to allow a journalist to make a 'fly on the wall' documentary about the work we do and the time that is wasted by public inefficiency. I hear Acumension have now lost the NHSLA contract - any idea of their replacement?