Russell Levy and Nicola Wainwright give their assessment of the law around medical negligence and the impact of proposed reforms from the Government to the lives of those injured through negligence in the NHS or in a private healthcare setting
It’s all too easy for claimant clinical negligence lawyers to become depressed and disillusioned.
A constant diet of trauma and tragedy, coupled with the sobering reality that medical accidents can happen to anyone, is not everyone’s ideal work scenario.
What makes it worthwhile is the sense of achievement and satisfaction, after working your heart out for a client, when you get to the bottom of what actually went wrong, and, if it could and should have been avoided, securing an award of compensation that will remove some of the stress, pain and anguish from your disabled or bereaved clients’ lives.
Sadly, surveying the current clinical negligence landscape, there’s little to be optimistic about. It has become increasingly clear that Governments of all complexions have little real interest in providing access to justice and a level playing field for people who suffer medical accidents.
The political will for reform favouring business, the insurance industry and Government departments has been eased by the enthusiasm of senior judges to assist.
The wisdom of entrusting the oversight of fundamental procedural reform to the senior judiciary is debatable – whilst they may have formidable intellects, appeal court judges have little experience of what actually happens in practice.
The result is that the uncertainty, confusion, delay and enormous increase in litigants in person that were predicted by those who opposed the reforms have all materialised.
One of the sole real safeguards, supported by the senior judiciary, was the insistence that legal aid provision should be maintained and, if possible, strengthened.
That was pushed aside by the Ministry of Justice. There is, effectively, no useful legal aid left for clinical negligence cases.
On top of that, the hike in court issue fees, pushing the maximum up to £10,000 (which will apply to virtually all serious clinical negligence cases), from March 2015, will further the aim of preventing individuals from seeking justice, whilst doing little for investment in the court system benefiting litigants.
And, to make it worse, next on the agenda is highly likely to be an attempt to impose a fixed costs regime that will not be limited to minor injuries but will be designed to cover the majority of clinical negligence claims, with the overriding intention of reducing the sums paid for damages and costs rather than securing early and full compensation for those who suffer avoidable medical accidents.
Of course, many of these observations apply to people who suffer injuries in other contexts as well. But there are significant differences when it comes to clinical negligence cases.
The rhetoric employed by the Government and medical defence organisations portrays a direct choice between paying compensation and legal costs or paying for hospital beds.
At the same time, the Government has published misleading statistics about the cost of dealing with medical negligence claims. So, for example, in July 2014 the NHSLA published statistics that nearly £26 billion had been reserved to cover the costs of clinical negligence claims, suggesting that this was the cost of clinical negligence to the NHS at that time.
In fact, the actual cost of claims in 2013/2014 was just under £1.2 billion - not an insignificant sum, but just 1% of the NHS annual budget, rather than over a quarter.
In contrast, billions of pounds spent by the Government on the failed NHS IT project and on payments to management consultants, engaged to assist with the continuous restructuring of the NHS, goes largely unreported.
Another difference is that all of this is set against a backdrop of increasing concern about patient safety.
Our clients’ experiences prove that lessons are not being learnt and safety is not improving as it should; hospitals still seem more interested in covering their backs than ascertaining the truth and improving the quality of their care.
These stories are backed up by objective evidence – for instance Sir Robert Francis’s report on “whistleblowing” published in February 2015; the Health and Social Care Information Centre figures that showed nearly 175,000 complaints about NHS care in 2013-14; the fact that 19 NHS Trusts have been put in special measures by the CQC since the Keogh report of 2013; the halting by NICE in June 2015 of its work on safe staffing levels (one of the many recommendations made by Sir Robert Francis after the Mid Staffs Inquiry still to be implemented). The list goes on and on.
The truth is that clinical negligence claims are not brought to try to squeeze money out of the NHS. They are brought and won because some patients receive substandard, occasionally appalling, care.
And the numbers of patients and relatives who need our help is rising, not falling.
If there is a commitment to improving patient safety in England and Wales, the Government has to reverse the current trend and actively assist those who suffer unexpected medical accidents in uncovering the truth about what happened to them, and to recover full compensation where appropriate.
The new statutory enshrinement of the ‘Duty of Candour’ is a step in the right direction but will be meaningless without a real commitment to providing proper access to justice for those who suffer clinical negligence.
Russell Levy is the head, and Nicola Wainwright the deputy head of the medical negligence department at Leigh Day. This article originally appeared in the introduction to the clinical negligence section of Chambers and partners guide to the legal profession 2016.