Critical list

With a three-pronged funding fiasco on the cards and spiralling NHS payouts, it really is time health chiefs stopped repeating their mistakes, argues Philippa Luscombe

It has not been a good year for the clinical negligence marketplace, either in terms of the performance of the NHS or the proposals for the future of funding claims.

According to the NHS Litigation Authority (NHSLA) Report and Accounts 2009-2010, clinical negligence claims rose by 9.2 per cent and the amount paid out in damages by the NHSLA increased by six per cent to over £650m.

It was clear as long ago as last autumn that not only would the disturbingly high number of adverse incidents, many of which give rise to clinical negligence claims, continue to rise for the foreseeable future but that it would be even more difficult for frontline claimant lawyers to achieve successful outcomes for clients who have suffered as a result of unacceptable errors in their care.

The two main reasons for this are the NHS' continuing failure to learn from its mistakes and the government's announced intention to substantially change the way in which litigation, including clinical negligence claims, is funded and to remove public funding (legal aid) for such claims.

I believe this will ultimately reduce access to justice for legitimate claimants who need it most, particularly those with large or difficult cases '“ often those who most need compensation to enable them to manage everyday life.

A tragedy of errors

There are many examples of NHS failure. One is the ongoing Stafford Hospital inquiry which has heard evidence that the regulatory system was 'wholly ineffective' and that the health system had 'completely failed', leading to hundreds of higher than expected deaths over a four-year period.

In August, the highly regarded charity, Action Against Medical Accidents (AvMA), made the disturbing claim that hospitals, mental health services and primary care trusts are killing and injuring patients by ignoring orders from the National Patient Safety Association (NPSA) to improve the safety of treatment. More than 200 NHS organisations had failed to comply with between one and 23 of the 57 NPSA alerts claiming staffing levels and cultural differences as reasons for non-compliance.

I share AvMA's concern that trusts do not appear to respond to or comply with these alerts with the necessary urgency. The purpose of the alerts is to save lives '“ probably the most urgent reason why any alert is ever issued.

Many of the people who contact us, regardless of whether they go on to pursue a claim, are concerned to ensure that what happened to them should not happen to anyone else. I am often surprised at how often the same unacceptable mistakes happen and steps do not seem to be taken to address these issues.

The litany of tragic deaths caused by incompetent out-of-hours doctors continued in 2010 leading to a government-ordered review of out-of-hours care which is expected to call for radical changes to the system.

Perhaps the most shocking case was that of the tetraplegic patient who suffered brain damage when his ventilator was erroneously switched off by an agency nurse. The harrowing video YouTube footage of the patient trying to alert the nurse to her mistake was clear evidence of system failure.

Behind closed doors

Claimant solicitors see first hand the devastating impact of clinical negligence on our clients and their families. We are frustrated by the failure of NHS trusts to learn from their mistakes.

Contributions from NHS trusts towards damages and costs payments in 2009-10 were £756m, with the highest from any individual trust being £13.9m. Surely it would be better for trusts and patients alike if this money was spent on identifying areas of failure and improving standards of patient care rather than allowing the same mistakes to happen with the end result of increasing numbers of claims and associated legal costs for both sides. Given that almost half of claims (43 per cent) between 1997 and 2010 resulted in an out-of-court settlement, it is surprising that the NHSLA still holds out for so long in many cases before either admitting liability or entering negotiations.

Several of our recent cases have been defended by the NHSLA until very late in the day before a settlement has been offered or agreed on a full or near full value basis.

These could have settled for a similar amount many months before with the saving of tens of thousands of pounds in legal costs. We often make early offers to settle which are simply ignored. These include a case for a lady left permanently disabled after a delay in diagnosing cauda equina syndrome where the case went a long way through a court timetable before settlement for a significant sum. By this stage, the costs for both sides were high, but, more significantly, our client had to struggle on throughout this period without the funds she needed to get the additional care, support and alterations to her home set up.

In another recent case involving a young professional footballer, the trust simply failed to respond at all to either a pre-action protocol letter or the offer to settle that was made at an early stage. Many months later, the claim was accepted and the original offer accepted '“ again with much higher legal costs than if the case been dealt with at the outset.

While we support the need to properly assess cases, the approach of defending strong claims so far down the line on all fronts is frustrating '“ resulting only in delay and cost.

Hopefully the new requirements of the amended pre-action protocol, whereby independent expert evidence must be obtained by the NHSLA in the protocol period in cases where the intention is to defend the claim, may assist in getting early admissions in strong cases.

Future funding fears

Probably the most significant fear for both clinical negligence lawyers and claimants alike is the government's announcement of the likely changes to the way in which litigation costs will operate, following Sir Jackson and Lord Young's reports on these issues alongside the proposed removal of legal aid for clinical negligence claims.

If implemented, the recommendations will lead to reduced recovery of costs on winning cases. At the moment, the recovery of costs on successful cases enables solicitors to take on a spread of cases, including the more difficult ones, and to investigate cases where the issues at the outset are not clear.

This means that, generally, claimants with valid concerns can get funding to at least investigate a potential claim '“ even if it does not progress beyond this point. However, with the restriction on costs recovery on successful cases, it seems likely that the only way forward will be for solicitors to pick and pursue only the strongest claims.

Claimants with high-value or difficult cases simply may not be able to find a solicitor to take their case on as the commercial risks are too high. Do we really want to see a society where only straightforward cases and minor injuries are compensated while paraplegic children with lifelong needs and complex, difficult claims are left without recourse to justice?

Those of us who work with seriously injured people on a daily basis see first hand the difference that compensation can make to getting effective rehabilitation at an early stage, enabling people to rebuild their lives.

While Lord Young's report correctly highlights problems with injury litigation, there is significant uncertainty as to how the changing of the costs process will affect which clinical negligence claims are brought and how. Many are concerned that the net impact will be to restrict access to justice for those with difficult and complex cases.

In turn, if the increasing number of claims and payouts has not yet forced the NHS to raise its standards and address problem areas, will the potential reduction in the number of claims pursued lessen the pressure on the NHS to identify areas of failing and address them? Will the NHS defend everything in the hope that the more restrictive recovery of costs will result in more cases being discontinued?

It remains to be seen whether, as some suspect, the proposed NHS reforms will lead to a further increase in errors and adverse incidents. The worst-case scenario is one in which increasing numbers of people suffer injuries which should not have occurred but who have increasingly less chance of obtaining and retaining funding to pursue a claim for compensation for their injuries.

We would also welcome a stronger focus on quality standards for those practising in this area to make sure that only valid cases are pursued. One of the potential side effects of withdrawing public funding for legal aid (which is currently only available to a small number of specialist firms with strict quality control standards) may be more non-specialist entities pursuing clinical negligence claims which, in turn, can result in increased costs and unmeritorious cases being pursued '“ the opposite of what is being championed.