Clinical Negligence and the Insurer. A quick tour through clinical negligence from the Claimant perspective Robert Dransfield Partner, Stewarts Law LLP

Why am I here? So who am I ? What do I do ? Why do I do it ? Who pays ? Why should you care?

Me

Clinical Negligence

Taking a knife to the NHS leeches Whether or not it originated in America or just sprang up naturally here, the litigation culture is one of the least attractive aspects of modern Britain. True, there are plenty of examples of people who suffered at the hands of inept doctors or other professionals and deserve compensation. Similarly, there are many cases where individuals have been victims of corporate wrongdoing. For every deserving case, however, there are many that are much less deserving but are pushed by unscrupulous lawyers. Even in deserving cases, too often the lion’s share of a payout is going not to the victims themselves but to their “no-win, no-fee” lawyers. From The Sunday Times March 22, 2009 Am I an NHS leech?

David Cameron “A damaging compensation culture has arisen, as if people can absolve themselves from any personal responsibility for their own actions, with the spectre of lawyers only too willing to pounce with a claim for damages on the slightest pretext. We simply cannot go on like this. That’s why I asked Lord Young to do this review and put some common sense back into health and safety. And that’s exactly what he has done. I hope this review can be a turning point. Lord Young has come forward with a wide range of far reaching proposals which this Government fully supports.”

Lord Young “The health service paid out £8bn in five years - only one third went to the claimants, and two thirds went to all those other parties. Now that is really something that should be stopped," Lord Young said. "MONEY IN THE HEALTH SERVICE SHOULD BE SPENT ON HEALTH, NOT ON THESE THINGS."

Zachary (Aged 5) D”Daddy gets money for poorly people….

Adverse incidents “Adverse incidents in British hospitals – a preliminary retrospective record review” Vincent et al BMJ 2001; 322; % of patients experienced an adverse incident Retrospective review of 1014 records 50% of incidents were preventable 1/3 lead to moderate or greater disability or death

The National Patient Safety Agency “Building a Memory:Preventing Harm, Reducing Risks and Improving Patient Safety” July ,342 incidents over 18 trusts, 572,000 incidents in all acute trusts Of the 85,342 : 58,512 No harm 21,710Low harm 4,822Moderate harm 678Severe harm 420 Death Aylin P et al “How often are adverse events reported in England Hospital Statistics?” BMJ 2004; 329:369. This report indicated underreporting. Aylin estimted 40,000 deaths each year caused by clinical “accidents” Statistics

The National Patient Safety Agency : Organisation Patient Safety Incident data – ,444 incidents No Harm 136,348 incidents Low Harm 35,349 incidents Moderate Harm 5,012 incidents Death or Severe Harm. These figures suggest significant increase in reported incidents since However, review of the actual quartely data work book indicates only 87% Trusts are reporting Monthly. These figures would suggest up to 40,000 clinical Negligence Claims a year?

NHSLA Claims Notified to the NHSLA of Claims Year05/0606/0707/0808/0909/1010/11 Claims

“Negligence claims against GPs rose by 20% last year – more than against any other group of doctors, reports the Medical Defence Union. The MDU, which indemnifies more than half of the UK’s GPs and hospital doctors, said there was no evidence of a fall in the quality of GPs’ care or their relationships with patients. It claimed that the increasing popularity of ‘no-win, no-fee’ legal arrangements may be at least partly to blame for the increase in claims.... The most common basis for a negligence claim against a GP was either delayed or wrong diagnosis, which accounted for 60% of notified claims. Failure to refer patients made up another 15% of claims, and medication errors 10%... The MDU’s head of claims Jill Harding, attempted to explain the recent increase in claims after a relatively stable period. She said: “While we cannot know all the reasons behind an individual patient’s decision to bring a claim after an adverse event, a factor in this increase may be the availability of ‘no win,no fee’ agreements which enable claimants to litigate with no financial risk... “The current difficult economic times may also be a factor. We see no evidence, however, of any deterioration in standards of care or in the professional relationships between our GP members and their patients”MDU OnMedica -19 May 2011

Lord Young “In 2009/10 the NHS Litigation Authority (NHSLA) paid out nearly £297 million in damages on claims closed in that period. On the same claims, the NHSLA spent a total of £163.7 million on legal costs, of which 74% went to claimants’ lawyers and 26% to its own lawyers. Some of this money could be better spent on healthcare.”

Sir Rupert Jackson In November 2008 Jackson LJ was asked by Sir Anthony Clarke MR to carry out an independent review of the rules governing the costs of civil litigation in England and Wales. His terms of reference included providing recommendations in order to promote access to justice at proportionate cost. He published a preliminary report in May 2009 and a final report in January 2010.

Primary Recommendations “No win - no fee” funding arrangements with recoverable success fees and insurance premiums “have been the major contributor to disproportionate costs”. “I recommend that success fees and ATE insurance premiums should cease to be recoverable from unsuccessful opponents in civil litigation … this recommendation … will lead to significant costs savings, whilst still enabling those who need access to justice to obtain it. It will be open to clients to enter into “no win, no fee” (or similar) agreements with their lawyers, but any success fee will be borne by the client, not the opponent.”

Primary Recommendations Abolition of recoverability of additional liabilities (success fees and ATE premiums) from defendants Return to pre-April 2000 CFA regime with client paying success fee capped at 25% of damages (excluding future losses) Increase in general damages of 10% Qualified one way costs shifting in PI Enhanced Part 36

Other Changes Abolition of Public Funding for Clinical Negligence Low Value Cases Scheme Changes in funding of Law Firms and the ability for external capital to have a controlling interterest. Tesco Law / WHS Smith Law Low fixed fees in Road Traffic Accident Claims.

Potential Side Effects Commercial aggressive pursuit of Clinical Negligence Claims. Greater focus on Group Actions Greater focus on High Value Claims Costs consequences of qualified one way costs shifting. Greater reach for High Street names to reach a much wider pool of Claimants.

Structural Changes to the NHS create opportunities Currently greater reliance on private provider by the NHS. Primary Care Trusts refusing to accept liability for contracted work. Contracted Consultant employees? The Health & Social Care Bill. Greater reliance on the Private sector by patients?

Current Emerging issues We now have at least 2 claims where the local commissioning NHS Trust has directly blamed the Private Health Care Provider. We have had a notable case where there real issues about the systems for checking the competence of a surgeon who has later been struck off. “Surgeon Chinh Nguyen is struck off after patient died at BMI Garden Hospital in Hendon, North London” Daily Mirror Headlines guarantee claims. Harman & Harman have a group of claims against Romford Maternity Hospital. Recent case law ie Wright v Cambridge Medical Group [2011] EWCA Civ 699 (CA)

What are Health Care Providers Missing? Health FIM The Personal Injuries (NHS Charges) (Amounts) Amendment Regulations 2011 – Up to £42,999. Subrogated Claims: - Identifying potential claims before the 3 years limitation. - Identifying ongoing claims. - Properly recovering full loss in subrogated claims. - Considering, potential recovery for failure to advance the health providers claim by the insured’s solicitors. Clear contract terms assigning liabilities for contracted services.

Lord Young “The problem of the compensation culture prevalent in society today is, however, one of perception rather than reality.” Don’t Worry