The prospects of a clinical negligence claim and other 2016/17 claims data

The recent annual report of NHS Resolution for 2016/17 gives an interesting picture of the current clinical negligence litigation market.

The number of negligence claims received by the NHS in 2016/17 (£10,686) fell by 2.5%, the third year in a row when the number of claims had fallen.  This apparent fall will be in part at least a factor of the surge in claims in 2013/14 prior to the change in funding arrangements (as a result of which success fees in successful claims under conditional fee agreements ceased to be recoverable from the NHS).

Orthopaedic surgery gave rise to the largest number of claims for clinical negligence (13%) although inevitably in terms of value obstetrics came out on top, accounting for 10% of clinical claims and 50% of the total value of new claims reported (orthopaedics accounted for only 5%).  Following close behind orthopaedics came (in order) casualty/A&E, obstetrics, general surgery, gynaecology, general medicine, urology, radiology, psychiatry/mental health and finally ophthalmology, although unspecified ‘others’ account for 34% of all received claims.

While total damages paid out during the year were just under £1.1 billion, a rise of 14% over the previous year, legal costs paid out to claimant lawyers was £498 million, up 19% on the previous year.  In contrast the NHS spent £126 million on defendant lawyers but claims are dealt with in-house until proceedings are commenced so that the figures are not comparable.  The payments made are in relation to claims often first notified many years earlier.

In 2016/17, of the claims resolved that year, 67.8% of claims were resolved without formal court proceedings and a majority of these claims (55%) were resolved without payment of damages. Proceedings were commenced in just under one third of claims, and of these damages were paid in 80% of claims.  Only fewer than 1% of these claims went to a full trial and at trial 60% ended in judgment in favour of the NHS. Therefore of those claims (about one third) where early negotiations were unsuccessful in resolving them and it was necessary for the claimant to issue proceedings, the vast majority (80%) were settled successfully for the claimant without a trial, but when the remainder went to trial only about 40% were successful.

NHS Resolution (the former NHS Litigation Authority, renamed in April 2017) claims that it intends “to improve the resolution of claims, striking the balance of avoiding unnecessary court costs whilst continuing to defend claims where there was no negligence and challenging inappropriate legal costs where we encounter them.”   It is to be hoped that this will result in the earlier admission of liability in more cases which are not defendable, and a more cooperative approach to resolving the value of claims, and a more effective use of mediation.

[Who or what is medico-legal minder?  Terms and conditions apply]

 

Concerns continue as to the quality of medical reports (SRA Report October 2016)

It is a sad fact that medical reports are still not of the quality demanded by lawyers, as revealed in a recent survey.

There remain concerns [amongst solicitors] over the quality of medical reporting and even with the introduction of the MedCo system which was designed to remove conflicts of interest and improve the quality of medical reports. Only a quarter of those surveyed felt that MedCo had achieved its objective of independence. Whilst the principles behind MedCo were generally supported, the implementation was criticised. There were also criticisms over the depth of scrutiny required to remove poor quality medical reports (some felt the information contained in the reports was overly standardised or superficial).” – An Assessment of the Market for Personal Injury – A final report for the Solicitors Regulation Authority (October 2016)

Perhaps given the absence of any formal accreditation scheme for experts, or any required standards, that is not a surprising finding.  However the continuing disappointment amongst the end-users of medical reports even with MedCo reports highlights the inadequacy of the compulsory training and so-called ‘accreditation scheme’ imposed by MedCo for these low value claims.  And if that is the approach to raising the standard of medico-legal reporting in the ‘controversial’ field of whiplash injuries, what does that tell us about any system for raising the standard of reporting more generally?

‘Accreditation’ (others would call it ‘certification’) is achieved after 30 – 40 hours online, studying 9 modules and answering online questions (and paying the fee).  Of those modules, how many address the issues relevant to preparing a quality medico-legal report, and how is that approached? No lawyer can answer that question because information as to the detailed content of the training or as to the standards intended to be achieved by the training is not available, at least not for those not paying the fee and taking the training (such as end-users).  However one can only assume that somewhere in module 8 (law and procedure) there is some hint as to how to construct an effective report (the other 8 modules appear to address soft tissue injuries and methods of clinical assessment).

Any attempt to ascertain from MedCo or the MoJ what the course content and objectives are, and what the required accreditation standards are, is met with silence.  So there is no public information as to:

  • the defined standards which the course was prepared against
  • the defined standards which those following the training are required to demonstrate in order to pass
  • any defined course content.

It is hard not to conclude that there are no such standards.  And that no or little attempt is made to explain how to provide what a lawyer and the court need from a medico-legal report (‘the medico-legal mind‘) and to give appropriate training to that end (something which some of us have been providing for many years).

If anyone does obtain answers from MedCo to any of these issues, please do share them with those who are paying for the reports and relying on them for the conduct of litigation!  And with me!

A last thought:  much of the course is in relation to imparting learning on ‘whiplash associated disorder’.  ‘Accredited’ experts are expected to have learnt what they are taught and presumably to have applied it in expressing their opinions.  Should not the lawyers and injured claimants be entitled to know what it is their experts (whose opinions they are paying for) are being taught as fact, and therefore on what their opinions are based?

[Who or what is medico-legal minder?  Terms and conditions apply]