The balance of probabilities, medical risk and Bayesian prior probability

January 18, 2016 geyre

For a lawyer involved in civil claims, the balance of probabilities is the “bread and butter” of litigation and is the standard of proof. For a scientist, and therefore for someone medically trained, probability is something entirely different and something much more nuanced. A recent example of the different use of words of probability in law and medicine was demonstrated in Rich v Hull and East Yorkshire Hospitals NHS Trust [2015] EWHC 3395.

The Scientific Advisory Committee of the Royal Society of Gynaecologists published in 1992 “Antenatal Corticosteroid Administration Reduces the Incidence of Neonatal RDS”. This encouraged the use of Betamethasone or Dexamethasone therapy “when delivery is likely before 24 weeks”. Evidence given to the judge about this guidance indicated that “likely” was a synonym for “probable”, and that this was intended to convey the idea of “significant degree of likelihood”. Further it addressed risk rather than issues of proof. One eminent witness indicated his view that a risk of between 5 – 20% would be sufficient to trigger the therapy, possibly adjusted upwards to reflect divergence of view amongst colleagues. The 5-20%, he explained, reflected a Bayesian prior probability, the generic probability, before considering the circumstances of the individual case.

The judge concluded from the evidence that “likely” in the SAC guidance did not mean “probably” in legal terms but something more akin to “a real risk”. However he also recognised that “with this type and level of analysis … it is artificial to reduce clinical judgments to the sort of exact formulation to which lawyers aspire”. In the end the duty of care the judge identified was that the doctor should have considered prescribing maternal corticosteroids if he had, or ought to have had, a clinical suspicion that the mother might or would deliver within the relevant period.

The importance of medical witnesses in legal proceedings understanding the difference of approach to probability and likelihood, and to the terms used, of the two disciplines (law and medicine) is well illustrated by this case. The danger of misunderstandings arising on points of considerable importance in litigation is apparent. For those who have read ‘Writing Medico-Legal Reports in Civil Claims – an essential guide’, this is of course another example of a case of “foot-wearing”.

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Fixed costs in clinical negligence claims

January 15, 2016 geyre

The government will consult on plans for the introduction of fixed recoverable costs in clinical negligence claims i.e. the introduction of a scheme such as exists for the majority of personal injury fast track claims, but, as revealed on 12 January 2016 in a reply by Ben Gummer MP, Parliamentary Under-Secretary to the Department of Health, to a written question from Andy Slaughter MP, the government’s intention is clear. That is, to introduce fixed recoverable costs (FRC) for clinical negligence claims from 1 October 2016 once the consultation is out of the way. This follows a delay in the consultation process. The formal consultation has not yet been published, but the implementation date remains the same.

There have been suggestions that the FRC regime may be applied in all clinical negligence claims with a value of up to £250,000. It would on that basis include many claims involving life-changing injury. Outside clinical negligence a system of imposed fixed costs exists only in relatively straightforward personal injury claims with a value up to £25,000. FRCs are set at levels which generally allow streamlined legal practices to carry out necessary basic work on a claim in straightforward cases. Such a regime if imposed on clinical negligence claims is likely to have significant implications for the viability of bringing such claims on behalf of injured patients, and to have knock-on effects on the fees which can be paid for expert evidence, particularly in the more complicated type of case.

For claimant lawyers who will be bringing such claims under conditional fee agreements (no-win, no-fee agreements), the paring down of costs recovered on successful claims will affect the economics of investigating difficult or complicated claims (which will include obtaining advisory reports from medical experts) where there is a high risk of recovering no costs at all. In the past the costs recovered from cases which are won have been used by claimant lawyers to help fund the work necessary for investigating and then abandoning, or pursuing and in the end losing, other claims.

It is argued that fixed recoverable costs are necessary in order to control the cost of defending such claims incurred by the NHS. Victims’ organisations argue that those costs would be avoided if more effort were to be put into avoiding the incidents which give rise to the claims in the first place.

Medico-Legal Minder will keep you informed once the government’s consultation documentation is available.

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