Defending clinical negligence cases and incurring costs

“I cannot leave the case without making two comments. The case before me for the Defendant was conducted with scrupulous fairness and considerable skill by Mr Evans, and the conduct of his instructing solicitors appeared to me to be most efficient. However…. I am very critical of whoever it was in the Defendant Trust or in the NHSLA who considered that this claim should be resisted on the basis (among others) that the delivery was a straightforward and unremarkable forceps delivery”.

So said the Mr Justice Gilbart in his judgment recently in the case of  JRM v King’s College Hospital Foundation Trust [2017] EWHC 1913 (QB).

In a week in which LJ Jackson has set out his new proposals for keeping costs proportionate in civil litigation, we have the above clinical negligence case.  The media will no doubt seize the new costs proposals as evidence of wrongdoing of claimant solicitors seeking to exploit cases for the maximum profit.  Yet for those of us in practice, the reality is quite different.

The case of  JRM v King’s was clearly exceptional in that it reached trial. However, in many cases, we are finding that NHS Resolution is defending issues which really should not be defended.

An example would be a case of mine in which one of the issues is the failure to provide pain relief up to the patient being anaesthetised.  My client suffers from a rare and extremely painful condition in which effective pain relief is important for his quality of life.

The NHS has claimed the self-administered pain relief system is removed long before a person is taken to the theatre because continuing it is a risk.  The trust concerned can locate no protocol for this and the client (who has had several procedures as a result of his condition) has always had the pain relief system in place up to the theatre door.  The version provided by the NHS is simply not accurate, is not based on any evidence and is not supported by the records. Yet despite my best efforts, this matter will need to be issued at court because it cannot be resolved in any other way.  The cost of so doing will be significant and unnecessary but it is the only way forward.

Another example would be the number of defences I get which are significantly different from the trust’s previous letter of response to the claim.

The system is that a letter of claim is sent out by the patient’s solicitors detailing the allegations of negligence. A letter of response is received some months later setting out the position of the doctor/NHS.  So far so good.  If the response denies liability, proceedings are likely to be commenced with the “particulars of claim” for the court setting out the same allegations as the letter of claim. The NHS then responds with a formal defence again setting out their position. Yet many of these defences are completely different to the letter of response – they often admit some or all of the allegations which were previously denied.

It makes no sense to force claimant solicitors to issue court proceedings if the evidence is clearly there that negligence was involved. This cost of this process is significant and it one which the NHS will ultimately have to bear. If they know they are at fault why not admit it at the start and then the lawyers can deal with the actual issues?  I have several cases where the defence  admits fault after this was denied in the letter of response. The increased costs will be substantial.

Not all NHS Trusts have taken unreasonable stances but there is anecdotally evidence of more need to start proceedings when this should not be necessary. There are of course patients’ solicitors who incur unnecessary costs but resisting cases where the evidence is quite clear is costly and illogical. If the NHS want, as they do, to reduce costs they must also look to what cases they are defending and why.   What is needed is a  more realistic approach to cases where there are problems.  It seems from the JRM case that this is still some way off.

* Disclaimer: The information on the Anthony Gold website is for general information only and reflects the position at the date of publication. It does not constitute legal advice and should not be treated as such. It is provided without any representations or warranties, express or implied.*