WELCOME to our summer newsletter and we hope that all our readers are enjoying the current sunny spell.
COSTS IN CLINICAL NEGLIGENCE CASES
There has been considerable reporting in the press about the excessive burden of legal costs on the NHS. Whilst we have heard of instances of high costs being charged by other Firms, the examples in the press are not, in our experience, the reality for the vast majority of Solicitors.
For virtually all clinical negligence cases issued at Court and at an early stage in the Court process, the anticipated costs of the case for both sides are reviewed in detail before being approved by a Judge. They are then kept under review throughout the case, with anything not claimed on the costs budget being disallowed unless expressly approved by a Judge.
Upon conclusion of a claim, irrespective of whether the claim has been heard in Court or not, there exists a well-used mechanism for the assessment of legal costs by a specialist Costs Judge. This is an avenue available to both the NHS’ lawyers and Claimants’ lawyers – either party can ask for this to happen.
This means that there are at least two potential stages when costs can be scrutinised by a Judge. The judiciary are not afraid to reduce costs if they feel the need to and have it within their power to halt any unreasonable claims in their tracks.
That the NHS want to limit costs is no surprise, but they need to look long and hard at their own process of handling claims and the avoidable costs their own processes lead to before pointing the figure of blame at Claimant lawyers.
As many of our clinical negligence clients can attest to: the NHS’ lawyers are often slow to respond to claims and even slower to admit liability, even in clear-cut cases. Invariably, this increases costs:-
1. We have to obtain expert evidence to prove negligence where, with an admission of liability, that evidence would not be needed;
2. We spend considerable time chasing the NHS’ lawyers for a response to a claim (our current record is over 18 months!);
3. We have to issue Court proceedings either because liability is wrongly denied, or because the NHS have spent so long responding to a claim that proceedings have to be issued to prevent our Client’s claim becoming time-barred (see our April 2015 Newsletter which details the extortionate Court fees that are charged).
The current proposal is for fixed costs for cases with a value of up to £100,000.00. As we have seen since the reforms in personal injury claims, many law firms will not take on the more challenging, lower value, cases because the new fixed-fee regime means that they are run at a loss. With next to no Legal Aid for clinical negligence claims, where will clients with complex claims worth under £100,000.00 go to for redress?
We are all for reducing the costs burden on the NHS, but surely the NHS need to first address their often shambolic processes?
DEATH OF BABY FOLLOWING FAILURE TO DETECT JAUNDICE
We are acting for the family of a young baby who died following the failure of midwives to act on jaundice. The baby’s parents reported that he was showing signs of jaundice, but this was not taken seriously by community midwives. As a result, there was a delay in our clients’ baby receiving the treatment he needed. A further delay in arranging for a doctor to examine the baby after his parents rushed him to hospital was also negligent.
There are very clear guidelines issued by the National Institute of Clinical Excellence (‘NICE’) which set out the tests and investigations that should be carried out in cases of suspected jaundice. The most important of these being the early measurement of bilirubin, the substance responsible for causing the tell-tale yellow skin and eyes in patients with jaundice.
There are now hand-held, portable and rechargeable devices, called ‘Transcutaneous Bilirubinomenters’ that can provide community midwives with instant confirmation of jaundice. These devices work very simply: they are placed on the skin; light is passed from the unit through the skin; a second component on the machine measures the light coming back into it and more specifically, how yellow this light is. The degree of yellow light emitted provides an indication as to the extent of jaundice.
……………S T O P P R E S S……………
Following the Francis Report into the Mid-Staffs NHS Trust and the introduction of a statutory Duty of Candour in April 2015 whereby the NHS and private healthcare organisations are now legally obliged to admit their mistakes candidly, a number of medical professional bodies have also introduced new guidelines to their members. Doctors, nurses and midwives need to offer a prompt apology and explanation to those injured by any mistakes during treatment. The Duty of Candour now applies to individual medics as well as organisations. This is a most welcome development as openness and transparency on the part of the NHS and their staff, will reduce the number of legal claims being made in the future, which in turn, will result in a significant saving in the costs of clinical negligence cases.
Congratulations to Seamus Edney whose application for re-accreditation to AvMA’s Clinical Negligence Panel has been successful. AvMA (Action against Medical Accidents) is one of the country’s leading charities for patient safety and justice. Applicants wish to join their panel must demonstrate:-
i. A high degree of technical ability in clinical negligence litigation
ii. Good interpersonal and client care skills
iii. The ability to research, analyse and evaluate complex medical evidence
iv. That they maintain their position at the forefront of current practice and new developments in the law and medicine through training, networking and working with experienced experts and counsel
v. That they use the knowledge and expertise derived from working with their clinical negligence clients to feed into systems for improving patient safety and access to justice.
In their letter to Seamus AvMA congratulated him on the “high quality application” which they had received from him.
S.J. Edney Solicitors were established in 1996 and are a niche Clinical Negligence and Personal Injury practice. Seamus Edney is a member of the Action against Victims of Medical Accidents Solicitors Panel, the Law Society’s Clinical Negligence Panel and the Law Society’s Personal Injury Panel. The firm holds a Legal Aid Franchise in Clinical Negligence.
As a firm we are committed to acting for victims of accidents and Seamus Edney has over 25 years’ experience of Clinical Negligence and Personal Injury work.