On 15 June 2015 The Law Society Gazette reported that the Department of Health has vowed to reduce the £259m annual bill for claimant costs incurred in connection with clinical negligence litigation. A spokeswoman for the Department of Health is reported to have said “Legal costs in clinical negligence claims are too high and take away vital funds which should be used for patient care … We are currently looking at ways to reduce these legal costs”. According to NHS Litigation Authority figures for 2013/14, claimant legal costs amounted to 22% of the £1.2bn expenditure on clinical negligence claims whereas defence costs amounted to 8% of spending.
One of the proposals being considered is the introduction of fixed costs for small value negligence claims. The comparison between claimant and defendant costs is misguided, taken out of context and, most worryingly, shows a complete lack of regard of the most effective way to reduce costs – prevent negligent events occurring in the first place.
Why the disparity between claimant and defendant costs?
Put simply, claimant practice is proactive, defendant practice is reactive. It is the claimant who has to collate the documentary and expert evidence to construct a case. The defendant responds to the case put forward. By the time a Pre-action Protocol Letter of Claim is served the majority of the investigative work has been completed. The claimant is also required to take the initiative and drive the litigation forward at each stage. The claimant’s Letter of Claim triggers the timetable for the Letter of Response, the claimant is required to collate the expert evidence and prepare a preliminary Schedule of Loss for service of proceedings, the claimant is required to take the lead when setting directions at the first case management conference, invariably the claimant serves more witness evidence than an NHS Trust, the claimant is required to prepare draft expert agendas for expert discussions, the claimant is required to apply for a Listing Appointment in order to list a case for trial. Throughout the litigation process it is the claimant who is typically required to liaise with the Court to seal and serve Orders. It is, therefore, unsurprising that claimant costs are greater than those incurred by defendants.
What about defendant conduct?
Another issue that drives up costs within litigation is defendant conduct. Speak to any claimant solicitor and they will give countless examples of defendant inefficiency, unwillingness to engage in early meaningful conversations on the merits of a case and defendant solicitors expressing frustration of being unable to obtain speedy and clear instructions from their client. Below is a list of a few examples of behaviour that I’ve experienced, which drives up costs:
- The inability of NHS Trusts to provide a complete set of medical records at the outset of the case. Records supplied are usually incomplete. Significant time can be spent reviewing records to ensure that the Trust has providedfull disclosure.
- The NHS Litigation Authority, and other defendant insurers, routinely fail to provide a Letter of Response within the 4 month period prescribed by the protocol. When Letters of Response are provided they can be poorly drafted, ambiguous, incomplete (not responding to each allegation within the Letter of Claim) and show a poor appreciation, and understanding, of the medicine involved. This results in claimants having to enter what is often lengthy correspondence with defendant insurers to seek clarification on their position.
- Following service of proceedings, simple questions of identifying the type of experts required to investigate a claim or whether an offer to settle is likely to be accepted often involves long and protracted correspondence with a defendant Solicitor, coupled by a lengthy delay while they obtain instructions.
- Continuing to defend cases where the evidence suggests that the only way forward is for the defendant to admit liability. Early admissions of liability in such a case result in significant cost savings.
How to reduce claimants costs?
The answer to this question is twofold:
- reduce the number of accidents and
- within the litigation context, improve defendant conduct.
A worrying aspect of claimant clinical negligence practice is the number of times we see the same mistake occurring time and again. Take Cauda Equina Syndrome as an example. Cauda Equina is a rare but well known condition with specific symptoms that should prompt any GP or A&E doctor to take immediate action. The symptoms of Cauda Equina form part of basic medical training and are described as “red flag symptoms”. It is unacceptable that time and again the red flag symptoms associated with Cauda Equina Syndrome are missed resulting in patients sustaining devastating permanent neurological injuries including bowel and bladder incontinence and sexual dysfunction.
Cauda Equina cases are complex and expensive to run. If the Department of Health is serious about reducing claimant costs then the Government should focus on reducing the re-occurring and preventable accidents by learning from mistakes. This pattern is not limited to Cauda Equina. The same can be said for midwifery care (birth injury claims), orthopaedics and oncology (delayed diagnosis of cancer).
There should also be a greater focus on penalising poor conduct of defendants. Early Alternative Dispute Resolution and settlement meetings are also likely ways forward. In order to reduce the cost of litigation there needs to be more dialogue and greater co-operation between the parties. Litigation is not a bar for collaboration!