Bond Solon Expert Witness Conference

Written by Mumtaz Hussain

The 2022 Bond Solon Expert Witness Conference took place again this year. The conference was opened with a keynote from the Lord Chief Justice, Lord Burnett of Maldon, who appeared via a remote link. He spoke about the 2011 case of Jones v Kaney, and issues surrounding expert witnesses immunity.

Anthony Gold had two partners on the speaker roster, namely Dr Jock Mackenzie who is a familiar face at the conference, and Jackie Spinks who addressed the expert witness audience for the first time.

Both Jock and Jackie lead lectures to the Bond Solon expert witness community, with regular updates on personal injury and clinical negligence. Jackie works with another Anthony Gold Partner, Amanda Hopkins to provide their personal injury update.

At the conference Jock and Jackie spoke about instructing and working with experts in their respective fields of expertise, namely tortious personal injury and medical or clinical negligence. Jackie focused on the role of the expert witness as set out in part 35 of the Civil Procedure Rules (CPR), along with a review of relevant case law impacting expert witness evidence. She also emphasised how crucial it is for an expert to remain impartial and not let personal views cloud their duties in Part 35 CPR.

Jock, an expert in clinical negligence began his talk with a generic definition of an expert, namely “a person with special knowledge, skill or training in something”. He went on to speak of relevant case law that has impacted clinical negligence cases. His talk was specifically mentioned in the Law Society Gazette, in Eduardo Reyes’ review of the conference.

Our team of expert solicitors handles cases where clients have sustained life changing injuries, and the experts we instruct are of the highest calibre, providing our clients with the best possible independent assessment of their injuries.

The Importance Of A Good Witness Statement In Clinical Negligence Cases

Over the past few years there have been several changes to the requirements for witness statements but the value of a good statement well drafted and focused can still be significant.

A witness statement is an important part of a claim but in clinical negligence, in particular the crucial section can relate to just a very minute part of the history of events.

Take the recent case of Freeman v Pennine Acute Hospitals NHS Trust where the witness evidence was fundamental.

 

The facts

This was a claim for severe brain injury at birth for a child who ultimately died at 12. The case revolved around whether a midwife gave negligent advice. At 10.30 on the morning of the birth the mother experienced sudden, intense, abdominal pain and the father alleged that he rang the maternity unit and told them about the pain. He said that he received advice (which was disputed) for his wife to take paracetamol and have bed rest. Later that day she was admitted and underwent a caesarean section. Sadly, the baby was born with significant neurological injuries.

Much of the case was agreed between the parties but the issue of the advice given was disputed. However the defendant hospital appeared to have significant problems with record keeping which did not assist the Trust. Poor record keeping does not save a defendant by having limited or no records of an event.

The father’s evidence clearly confirmed that he had told the midwife of the severe or intense pain. He confirmed the panic in the family at the time when the advice was given. He explained why he had such a strong memory of events.

The Judge found that the midwife was told of this pain and provided incorrect advice in response. The evidence of the family was believable and consistent. The witness statements had to deal with the whole event – from previous medical history, through the history of the pregnancy to the caesarean section and beyond. As the case progressed, the fundamental issue to whether it could succeed was the content of a very brief telephone conversation hours before the final admission.

By contrast Watson v Lancashire Teaching Hospitals NHS Foundation Trust demonstrated the need to be careful about the witness statements being put forward.

 

The facts of the case

The claimant had attended the ED Department two months before the index event. Two months later she had a serious stroke. Her case was that she was suffering from a TIA (mini stroke) at the time of the initial visit and if this had been included in the differential diagnosis she would have been prescribed Aspirin. Therefore, the stroke would probably have been avoided.

The defendant argued it was not a mini stroke. Even if it had been, the aspirin would have been taken just for a short time. Further, even if she was still taking aspirin, she would probably still have had the stroke.

Again, the parties agreed much of the case, so the issue became quite focused to how the claimant had presented at the time of the initial attendance at the unit.

The claimant and partner referred to left side of face drooping and a left weakness. It was accepted that there was some weakness of the left arm but there was a dispute about the onset. Again, the medical records were brief and not helpful.

The main questions for the court were – did the claimant have a right or left sided facial droop? What was the extent and timing of the weakness and were there symptoms of a TIA at the initial presentation? The claimant did not give any oral evidence, so the main witness became the partner.

There were discrepancies in the partner’s evidence. He asserted in oral evidence that the claimant had suffered left leg weakness, but this was not referred to in his witness statement or in the particulars of claim and although considered an honest witness, the judge preferred the doctors’ evidence. Further the partner gave evidence of a left sided facial droop which was not the case put forward. The pleadings suggested a right sided droop. The result was that the statement was at odds with the other documents.

Inconsistencies and inaccuracies between statements, pleaded cases and medical records give a negative impression to judges. There was no concern as to the honesty of the witness – just the problems that were apparent with the statement and evidence.

The remaining witness statement may have been significant in length and content but the issue on which the case ultimately failed was the description of the claimant’s presentation at a short attendance at the hospital before the stroke occurred.

 

Conclusions

Witness statements can be tricky, but it is important that they are accurate and reflect the actual case being put forward.

It is noteworthy in clinical negligence that often there are many valid complaints about medical and nursing care for whatever reason, but the pertinent issues that actually form the case quite often tend to be very specific. They are usually limited in time and circumstance. There may have been failings in the rest of the care but those are not relevant to the circumstances of the case. A witness statement that details all those failings in care in great detail may make an individual claimant feel that they are being heard but are likely to distract the reader who ultimately will be the judge.

Likewise a statement provided by defendants where the factual evidence is fairly short but there are detailed references to irrelevancies are of little assistance to the court.

It is also noteworthy that at the earlier stages in a case the parties, particularly the claimant, have an opportunity to provide detail about the issues based on their understanding of events. Such correspondence may be sent before the records are obtained and experts instructed. Further a claimant may provide details to the DWP, employers and various health professionals which may not be consistent with the final pleaded case or their statement such as in Watson v Lancashire.

A good witness statement can make an enormous difference to a case, but a poorly drafted witness statement at odds with the case or with lots of irrelevant comments, assertions and opinion may do quite the opposite.

Electronic Health Records and Clinical Negligence claims

The NHS began to transfer from locally-held paper-based patient records to electronic health records (EHRs) in the mid-2000s with the plan being to ensure that patients across the UK had centrally-accessible digitally-generated electronic patient records (EPR).

Potential Advantages

EHRs are widely viewed as a means by which modern day healthcare can be provided in a more efficient and information-sharing way, which in theory will improve patient care. The idea was that there would be a lifelong digital EHR for a patient from cradle to grave, round-the-clock access to a patient’s records containing all necessary information needed to treat the patient, and seamless care through the patient’s healthcare pathway, whether GP, community hospital or secondary care hospital. The potential advantages of EHRs are relatively self-evident: they may improve care and are more efficient, convenient, space-saving and accessible.

Good Practice Guidelines for GP Electronic Patient Records

Unfortunately, the initial plan to deliver EHRs across the UK, known as the National Programme for Information Technology (NPfIT), was an expensive disaster (costing nearly £13 billion of taxpayers’ funds): it was launched in 2002 by the UK government and disbanded in 2011. Since the NPfIT’s resounding failure, the update of EHR systems in the UK has been slow and different hospitals and different Trusts now have different systems provided locally by different IT providers, which adds to difficulties with the roll-out of such a scheme. Additional concerns about EHRs generally include security (phishing, malware, cloud threats, encryption issues, insider threats, data breaches, etc.); reduction in time spent by healthcare practitioners with patients because of the need to learn about and then use the IT (and its associated gremlins); and disagreements as to the extent of access to digital records by patients.

In 2011, the Department of Health, British Medical Association and Royal College of General Practitioners produced a detailed document setting out Good Practice Guidelines for GP Electronic Patient Records [1], and it must be said that GP records are far easier to navigate and interpret than hospital records. I note in passing in that document that one of the non-clinical purposes of the records is described as: “Providing medico-legal evidence (e.g. to defend against claims of negligence)”; rather interestingly, the example is to defend claims, not simply to provide evidence so that the Court can find the truth of the matter!

Problems For Clinical Negligence Claims

The advent of EHRs has caused problems for clinical negligence claims, too, for a variety of reasons. I have previously written about missing records and the difficulties this can cause in a legal case, let alone with respect to healthcare. In many respects, in my experience, EHRs have made the matter worse rather than better.

With EHRs, some Trusts have scanned in prior written paper records into the EHR but have then destroyed the original source documents. This raises significant problems because at times the scanning is of poor quality, parts of pages are missing, black and white scanning results in the loss of metadata and there has been a resulting loss of source data in the scanning process. If the original source record has been destroyed, this will mean that some data will have been permanently destroyed. Further, the organisation of the EHR is often very difficult to navigate. This is in particular when part of it has been scanned in as a ‘batch’ of records with those scanned records not individually indexed within that batch and not in a chronological order. It may be necessary to open each page of such a scanned record individually to identify its content, which is a time-consuming exercise. There is also often no audit trail with respect to the source data scanned into the EHR, so it cannot be known whether a record had been amended or altered so the integrity of the data cannot necessarily be verified.

Irrespective of the problem with the scanning in of archived medical entries, the EHRs that are generated digitally are also problematic for numerous reasons.

The mere fact that different hospitals and Trusts have different EHR systems provided by different companies causes problems, as different electronic patient records (EPRs) are organised differently and there is a fundamental lack of uniformity across the NHS. With paper-records, there was generally a broad uniformity across hospitals of the lay out and organisation of medical records and one set of records in one hospital would be very similar to another hospital in a different part of the country. This is no longer the case and digital records can vary very significantly.

Chronology

Further, sometimes the time and date of an entry into an EHR is the time and date the creator enters the data rather than the system-assigned creation date or the date of the event, such as a ward round. This naturally can be problematic when seeking to piece together the chronology of events later on for a legal case. It is also not always clear who the creator of the entry was and sometimes non-medically or non-clinically trained staff will make entries into the EHR on behalf of a health professional. It has often been difficult even with paper records to ascertain who wrote a medical entry but the EHR has not improved the identification of individuals and it can still sometimes take considerable time-consuming investigation to ascertain each individual.

Different departments in hospitals may use different systems, e.g. the Emergency Department (ED) may have a separate system to the rest of the hospital, and such systems do not always necessarily “talk” to each other coherently. This can mean that a particular department will not have access to the patient’s main EHR at a given time, such as when the patient attends outpatients or ED, which defeats one of the main purposes of the EHR.

Pathology results are not always dated and timed with the date and time the sample was taken, which is often the critically important information in a legal case, but rather the date and time the results were obtained from the laboratory or even the date and time the health professional subsequently reviewed the results on the computer system. This is naturally confusing. It is not always easy or even possible to verify precisely when the sample was actually taken, which can ultimately be hugely problematic.

Reproduction To PDF Format

The subsequent reproduction of the EHR into a digital record (usually in the form of a pdf) is almost always problematic. It is much harder to ‘sort’ EHRs than paper records in a standardised way, such as into clinical records, pathology results, operation notes, correspondence, etc., because of the way that the EPR is often reproduced as a continuous ‘stream’ or ‘run’ of data running over hundreds, if not thousands, of pages with different types of data, e.g. the above-mentioned clinical notes, pathology results, operation notes and correspondence, from different dates featuring on one page rather than each being on a separate page of A4, as used to be the case. Before the rise in EHRs, I used a standardised system for sorting and organising all medical records, which aimed to mirror as accurately as possible the layout of the paper-based medical records in hospital, in the order that they would be found in the paper notes. This was possible even when the records were provided in a complete mess, which was a frequent occurrence. However, such sorting is now rarely possible given the problems noted with the way EHRs are reproduced and we tend to end up having to have a ‘core bundle’ of key records which is easier to understand and manage. This is not a problem in and of itself, and I am rather a fan of core bundles even with paper-based records, but there is no doubt in my experience that it takes longer and it is a more time-consuming process to sort, paginate, index and consider EHRs than it was with paper records, resulting in a less user-friendly final set necessitating a core bundle earlier on, all of which is overall a more costly exercise.

With pre-EHR notes, it was relatively easy just using the clinical notes to follow a patient’s health career without the need to prepare a separate detailed chronology, but with EHRs I now almost always prepare a detailed chronology in complex cases (which often then accompanies the Letter of Claim) to set out clearly the sequence of health events because the EHR is almost never in chronological order and, even with sorting, it is just not possible to organise the EHR chronologically and in a way that is easy to follow. Again, I was a fan of chronologies even with paper records, but it is nevertheless time-consuming and, ultimately, more costly to need one in almost every complex case.

Amendments to Records

It was also possible often (although not always) with paper records to see whether a record had been amended, added to or altered in some way, often by the handwriting, the colour of the ink used, the way the note had been written in the margin, etc. This is not so easy with EHRs and, whilst there will be an audit trail on the computer system, accessing that to ascertain when information may have been manipulated or amended would be necessary and is a much more protracted exercise than seeing an amendment on the record face; it is also reliant on compliance from the Hospital/Trust.

Concluding Remarks

The above are just some of the problems now that may be encountered with EHRs in clinical negligence claims. To make matters worse, with the relatively recent change in the law with respect to data protection such that Trusts cannot charge for the provision of medical records when a subject access request is made (the charge used to be £50), Trust medical record departments have been increasingly reluctant to spend time providing missing records or replacing poor quality records (and there are almost always relevant missing records). In fact, generally I now find that if I request missing records, all the Trust does is send another full set of the EHRs (presumably because it is easier just to send the whole digital record to print to pdf than actually search for the missing record). This is a ridiculous waste of our time and likely also reflects how difficult it is to search EHRs for specific missing records/entries.

Having said the above, because the records are now typed, it is definitely easier to read what is written, whereas previously the interpretation of handwriting was a major problem with paper records (noting the joke about how poor doctors’ handwriting is), although sometimes it is still difficult to understand or interpret what was actually meant by what was written even when typed.

Medical records are an absolutely fundamental part of just about every clinical negligence claim, certainly the complex claims. The creation and reproduction of the medical record has always been a vexed issue – both medically and legally, and even before EHRs – but in my view EHRs have not improved the situation. In fact, in my experience, medical records now are generally harder to sort into a coherent chronological bundle and it takes longer and is more costly, usually requiring the extra steps of a core bundle and a separate chronology in the complex cases; it is also often no easier to ascertain who wrote a record and when or, on a record’s face, to see if it has been amended or altered and, if so, when and by whom.

Accordingly, the early steps in the investigation of a clinical negligence claim are now frequently more time-consuming and costly than they were prior to the advent of EHRs; for all their potential healthcare-related benefits, EHRs are as legally problematic as their paper predecessors, if indeed not more so.

How safe is the emergency department?

NHS Resolution reviews Emergency department claims

As part of their ongoing reviews, NHS Resolution- NHSR (in essence the department in the NHS dealing with litigation claims) has published a series of new reports detailing cases and events that occur in emergency departments.

Their hope is that they can identify common issues with a view to reducing incidents of negligence.

Clinical negligence claims associated with emergency departments in 2020 and 2021 accounted for 11% of the total number of claims that were notified. They also account for 5% of the total estimated value of all claims, the third largest group of claims.

NHSR looked at three categories of claims: (a) high-value claims, those in excess of £1 million, and fatality claims; (b) missed fractures; and (c) hospital-acquired ulcers and falls. The valuations of the claims varied significantly but these were the most common incidents.

High-Value Claims

In the high-value claims, missed diagnosis was a key theme common to all of the incidents and was particularly pertinent for spinal and cerebral injuries. With the fatality claims, there tended to be a misdiagnosis. These would certainly be areas of practice in which claimant clinical negligence lawyers are commonly consulted.

Interestingly in about half of the high-value claims, there was evidence of an incident report and a complaint but only 12.5% of the cases had actually been reviewed in line with the recommended serious incident process. In short, the opportunity to learn from them had been lost somewhat.  Despite the assurances of the NHS that they will review serious incidents, this clearly had not occurred.

The other issue was that there seemed to be a lack of documented complete examinations (particularly neurological) and in some cases a failure to perform the right diagnostic test. There are also of course several cases where the diagnosis was delayed. Those delays then had serious consequences as many critical conditions are time-sensitive, needing a senior review and referral to appropriate specialists.

These were claims that arose pre-Covid although their ultimate settlement may have been recent. Therefore, although the assumption might be that Covid and resulting staff absence might be a pertinent factor, it is not relevant here.

Common Themes

The number of cases examined was relatively small in terms of statistical analysis but nevertheless, there were some common themes, and these would be reflected in the everyday practice of clinical negligence lawyers working on behalf of claimants. History taking, recording examinations, negative findings and missing documentation are the common factors. Following on from that, there are failures in communication and referral delays.

The NHS has taken some time to look at how they can deal with these matters and what individual factors may impact on decisions made such as fatigue, distraction, poor communication and so on. They have also argued that there should be proper facilities for imaging within the emergency departments throughout the country and some more multidisciplinary training.

Sadly however, one of the conclusions of their report is that over the last three years NHS Resolution have undertaken a number of these reviews over various specialities but the themes identified highlighted a very similar range of contributing factors. In short, they are not quite reinventing the wheel, but the cynics might argue that if these issues had been raised before they had an opportunity to correct them.

There is nothing in the NHSR report that comes as any surprise to any claimant clinical negligence lawyer. I have several cases dealing with a clinical negligence in the emergency department (ED) and quite often it is delay, poor documentation and failing to communicate that causes the difficulties. Unless the NHS sets in place the protocols and complies with them, and indeed gets the proper funding to do so, there will always be these issues arising. It is not clear how many NHS ED staff not only have access to this report, which is in the public domain, but will have the opportunity to review it and apply some of its points and conclusions to the work that they do. It is one thing to produce the work, it is quite another to have an effect with it. It is to be hoped that the NHS Resolution gets the opportunity to discuss these issues with practitioners in the field.

Education

For claimant lawyers, the reports confirm that the issues about which we have been complaining for many years and how little progress appears to have been made. Negligence claims and complaints are an obvious source of material for educational purposes. Most claimant clinical negligence lawyers would hope that these reviews actually start to achieve a reduction by being are utilised properly by practitioners in the various departments.

Until such time as these depressingly repetitive problems are considered and protocols are put in place to ensure issues are reviewed properly, claimant clinical negligence lawyers will continue to see clients who have suffered as a result. The tragedy is that the educational material is available, but the will and resources needs to be there to make changes. It is in everyone’s interests that the NHS does so.

Fixed recoverable costs in clinical negligence: The claimant’s voice needs to be heard

In January of this year, the government’s Department of Health and Social Care [“DHSC”] opened a consultation on fixed recoverable costs [“FRCs”] for lower value clinical negligence claims. It remains open for responses until 24 April 2022. The consultation comes off the back of a report by a working group of the Civil Justice Council on the subject[1]. Both claimant and defendant groups made representations into that report, but the government’s consultation document and accompanying impact assessment display a concerning lack of attention to the interests of claimants.

How Might Fixed Recoverable Costs Negatively Impact Claimants?

It is worth outlining the reasons why practitioners have raised concerns that FRCs, in every practice area, might have a negative impact on claimants. The argument against them goes something like this; FRCs are inevitably not set high enough to enable claimant solicitors to recover all their time costs, all of the time, from defendants. Therefore, there will always be cases where the amount of legal work that the case requires (to be well organised, presented and pleaded) exceeds the solicitor time costs that are recoverable from the defendant. What then happens is one or more of the following things:

  1. Claimant solicitors recover their costs shortfall from their clients’ damages;
  2. Claimant solicitors put less time into lower-value work than is required to win and/or properly value the claim, and so claimants lose more often or are awarded less in damages (conceivably, this could lead to a rise in professional negligence claims against claimant solicitors [2]);
  3. Claimant solicitors run lower value cases at a loss (which runs the risk of firms going out of business, meaning fewer lawyers are available to do this kind of work [3]); or
  4. Claimant solicitors stop taking on lower-value work.

In all of these outcomes, the result is that claimants receive less damages or may struggle to find legal representation at all.

Given these concerns, shared by many representing claimants in the legal profession, it seems reasonable to hope that the government will, whenever it is considering policy around fixed recoverable costs, have the interests of claimants and access to justice at the forefront of its mind. Unfortunately, the substance of the DHSC’s consultation suggests that it does not.

 

How was this Decision Made?

Firstly, to take the headline issue – the solicitors’ set rates that are being proposed; the DHSC has adopted the defendant group’s suggestions without a hint of compromise with the claimant group’s. The defendants’ suggested rates are, unsurprisingly, much lower than the claimant’s (four times lower for certain sections of the new scheme). It would be helpful to have some explanation as to why the government has taken the defendant’s side wholesale on this most important issue, but the consultation document says only that the government thinks that the defendant group’s proposals represent:

“the most reasonable assessment of the work involved at each stage of the streamlined processes designed by the CJC, whilst protecting the access to justice of claimants and furthering the common goal of rapid resolution.”

There is no further analysis provided.[4] This is despite representations from the Bar Council that:

“particular weight should be attached to the views of claimant solicitors, who are best placed to determine whether the balance between the steps involved in the scheme and the level at which the fixed costs are set is workable and viable.” [5]

Arguably, the lower the recoverable rates, the greater the four risks in my numbered list above, and the worse it will be for claimants.

 

Functional Problems with the New System for Lower Value Claims

Secondly, there appear to be functional problems in the proposed new system. The DHSC says that the proposed new “Light Track” and “Standard Track” offer a “streamlined” way to manage lower value claims, one which will enable claimant solicitors to achieve the same results for their clients in less of the time. However, both the claimant group and the Bar Council have pointed out that the system (in the initial stages at least) in fact requires a greater amount of work on the part of claimant solicitors. This is because, under the proposed “Standard Track,”[6] claimants will be required to serve an expert report on breach and causation, witness statements, details of loss and supporting documentation, (“if applicable”) a report on condition and prognosis, and an offer to settle all at the same time as the Letter of Claim. All this, despite the fact that research suggests at the moment only 8.72% of cases settled before court allocation required the claimant to serve any factual or expert evidence on liability. [7]

This is a huge amount of additional work to do without so much as a whisper from the defendant, and often before it has been possible to confidently evaluate the claim’s prospects of success. This level of risk may prove unacceptable to claimant firms, driving them away from lower value clinical negligence work. [8]

This is also bad news for claimants themselves. It means that claimants must “show their hand” before the defendant, putting them at a disadvantage in the litigation and potentially meaning their evidence will have to be revised (at further cost) once the defendant has made its evidence available. Furthermore, the Society of Clinical Injury Lawyers has pointed out that if condition and prognosis reports must be served before agreement on liability then ATE providers are likely to make these reports non recoverable; these costs will therefore eat further into claimants’ damages.[9]

 

Fixed Recoverable Costs for Fatal Injuries

Thirdly, the exclusions. Despite the representations made by the claimant group, it is proposed that the scheme will include fatal claims. Claims involving stillbirths and neonatal deaths are, fortunately, excluded, but the remainder of people who die because of negligent medical care may have their claims subject to FRCs.

I have blogged previously about the problems in the compensation system for fatal injuries and this will only make matters worse. Fatal injury claims are always tragic, and they put an onus on practitioners to give a personal as well as a professional service. They are often complex, too, and frequently require additional work such as assisting with probate or attending inquests.[10] I fear that the introduction of fixed recoverable costs will add further pressure to practitioners working in this difficult area, and that this pressure may (whether in monetary terms or otherwise) be transferred to claimants.

There were other points I could have made about this consultation – and we await a full response from AvMA which will probably be comprehensive – but those issues stood out as particularly worthy of comment.

If this blog has sounded all doom and gloom, I apologise; the consultation is, of course, only a consultation. Whatever policy the government decides to implement has yet to be drawn up. It may well be some time before we see any actual changes in the law, and if enough people and representative bodies respond to the consultation (which of course I encourage everyone to do here) then perhaps this may prompt a rethink around some of the issues I have outlined.

 

References

[1] Fixed Recoverable Costs in Lower Value Clinical Negligence Claims. Report of the Civil Justice Working Group

[2] In my short time as a trainee solicitor doing Personal Injury claims, I worked on a professional negligence claim that arose from this very problem.

[3] This has unfortunately already started to happen in the personal injury sector: https://www.lawgazette.co.uk/news/pi-firm-flying-high-a-decade-ago-goes-into-administration/5110936.article

[4] The Impact Assessment does list individuals claimant as an affected group. For reasons I cannot fathom, however, they are not included in the table of “Net impact of monetised benefits and costs” on page 15 of the Assessment.

[5] Bar’s position statement, para 2 Appendices to CJC report

[6] Fixed Recoverable Costs in Lower Value Clinical Negligence Claims. Report of the Civil Justice Council Working Group, p.24. The Standard Track applies where liability is in dispute, estimated to be 75% of all claims.

[7] Appendices to CJC report. SCIL position statement, s.3 “The Process”

[8] Ibid. Bar’s position statement, para 24. A)

[9] Ibid. SCIL position statement, s.6 “After the Event Insurance” (ATE)

[10] Ibid. SCIL position statement, s.2 “Exclusions”

General Practitioner vacancies: an ongoing problem

In September 2014 I wrote a blog about waiting times in General Practice, following a report in the Guardian newspaper about how increasing waiting times would impact upon the quality of care that patients receive. In that blog I mentioned a few examples of the more common problems that we see when mistakes are made in primary care. Since then, the government stated (in 2016) that it will be introducing “Crown (i.e. state-backed) Indemnity” for GPs, on the basis that a significant reason for the difficulty in recruiting GPs was the cost of medical insurance/indemnity. I gather (from my own GP) that the Medical Defence Union has already reduced its premiums for GPs on the back of this announcement. The government has also stated that it proposes to increase the GP workforce by 5,000 by 2020.

An interesting article in Pulse on 6 July 2018 claimed that “GP vacancy rates rocket with one in six roles unfilled”. The article states that “Pulse’s annual vacancy survey of 658 GPs found that 15.3% of GP positions are currently empty, up from 12.2% last year, and 11.7% in 2016”. Apparently, 1,000 GPs have left the workforce since 2015 and it seems that the government is well behind its 2020 target. As at March 2018, there were 33,574 full-time GPs in the NHS and over 41,000 GPs including those working part-time. These figures are believed to include GPs in training, though, and there is no guarantee that, even if they were to stay in general practice, such GPs will work full-time, as they will likely be better able to manage their onerous workload working part-time. Most GP practices are one GP short; and there are also significantly fewer GP practices in the country than there were a decade or so ago.

The government has supposedly also introduced 500 new medical school places and there are apparently 3,000 GPs presently in training. However, it takes at least 5 years to qualify as a doctor, let alone thereafter train to be a GP, and there is no guarantee of the number of those new medical students who will eventually become GPs, especially as statistics suggest that increasing numbers of new doctors would prefer to become consultants rather than GPs.

Although the Pulse study was small, all the evidence points to the fact that, since 2014, matters appear to have worsened rather than improved. There appears to be a disconnect with government, NHS England apparently having criticised the study as “tiny and unrepresentative”, notwithstanding that a primary care Professor at Imperial College London says the study supports the evidence that Imperial has. It is notable that when the government announced in 2016 its drive to recruit an extra 5,000 GPs by 2020, an analysis by Imperial suggested that, in fact, an additional 12,000 GPs were needed, in part because of the extent of part-time working. Of course, the government wants to be seen to be taking positive steps to increase GP numbers, so news of this nature is not helpful to its PR machine.

It is not just the cost of insurance that is the problem, though. Workload and work type (i.e. too much administrative and not enough clinical) are also issues, as is pay – an average GP partner in England earned c.£136,000 (uplifted) in 2004 when Labour agreed a new GP contract and, with successive contracts, that has been whittled down to c.£105,000. Salaried GPs earn a lot less (on average c.£63,000), which is also a lot less than an equivalent hospital doctor. However, insurance is a big issue – to date, a sizeable amount of a GP’s salary is spent on insurance premiums to the MDU, the MPS and the other Medical Defence Organisations (MDOs), whereas NHS hospital doctors have state-backed insurance through NHS Resolution’s Clinical Negligence Scheme for Trusts (CNST).

On average in 2016 the cost of indemnity premiums was about £7,900 per annum per GP; an increase from c. £5,000 per annum per GP in 2010. The MDU estimated in 2016 that indemnity inflation was about 10% per annum, which means that by 2018 that £7,900 will have become £9,500 per annum. Even having regard to just the 33,000 or so full-time GPs, one does not need to be a rocket-scientist to work out that that amounts to well over £300 million per year being paid by GPs to the MDOs for insurance. Whilst the MDOs are “not-for-profit” organisations and argue that the premiums pay for running costs, litigations costs and damages pay outs (all of which are also increasing), etc., this is still a very significant sum to be paying to the MDOs.

There is no doubt that state-backed indemnity for GPs, equivalent to the CNST, is in principle a welcome development both to GPs and to patients. What really matters is patients having access to GPs and GPs having the time and resources to manage their patients properly (as well as enjoying their job): hopefully this indemnity change will go at least some way to redressing the recent problems of recruiting and retaining GPs, even if it in and of itself will not be fully sufficient.

* 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.*

The endless saga of medical records

Any clinical negligence practitioner will know the difficulty in dealing with medical records.  These documents form by far the most important evidence in a claim. Where it is advantageous to them, defendants have certainly argued that they should be the definitive evidence.

There have been many cases in which the defendants have argued that the weight of evidence should be firmly in favour of the medical records. However, there have been other cases where defendants have argued that even where the medical records appear to be silent, the evidence of the medic concerned as to his or her usual practice should be sufficient to establish a defence.  In short, it is argued that, though there is no evidence that something has been done, it will have been done.

The reality is that medical records present both sides with difficulties depending on their quality, availability, thoroughness and informative value.  As a practitioner I am still receiving medical records which are woefully incomplete and still having to make applications to court for the disclosure of some missing records.

But what is the actual evidential value of the medical record in a claim?

There have been various issues in relation to this, but perhaps the most commonly quoted case is that of Denton Hall Legal Services v Fifield in 2006. In this case medical records were classified as hearsay evidence under section 1(1) of the Civil Evidence Act 1995.  This means that they are evidence of what was recorded, rather than evidence of what actually occurred and the person who wrote them does not need to give evidence to prove that this is what they recorded.

Although courts tended to and still have a tendency to place enormous weight upon the evidence in the medical records, they are not fact. They are someone’s account of what has happened.

In a recent case the issue of the value of the medical records and their inclusion in bundles for trial came again to the fore. This was the case of Calderdale & Huddersfield NHS Foundation Trust v Atwal.

This was an unusual application before the judge. The NHS was seeking to make the former claimant liable for contempt of court proceedings. It was alleged that he had pursued a fraudulent claim for compensation, claiming over £800,000 when settlement a couple of months before trial was for in the region of £30,000. There is clearly no doubt there was a substantial difference between the two figures.

There were substantial differences between the claimant’s account and the medical records. The Trust wanted to highlight the inconsistencies and this formed an important part of their case. The court therefore had to consider what the evidential status of the medical records were because it was clear that the Trust was relying on this evidence to establish that the initial claim was fraudulent.

One of the rules however of hearsay evidence is that a solicitor needs to give notice that they are seeking to use in it court. That notice is usually given many months before a trial. So there was an issue as to the admissibility of the records as no such notice had been given. The original claim had settled albeit chaotically just before trial .

However the court confirmed if medical notes form part of an agreed bundle for a hearing, the documents are admissible at that hearing as evidence of their contents under paragraphs 27.1 and 27.2 of Practice Direction 32 (Evidence),

In any event hearsay evidence of its own is not necessarily excluded simply because notice wasn’t given at the appropriate time. The court can decide to include it.

However of more importance was the  difference between the claimant’s account and the medical records.

In this particular case the judge held that caution should be exercised in this case in relying upon the medical records to prove that what the defendant told the medical staff was true, as opposed to relying on it to prove the defendant made the statement in question. Clearly there were inconsistencies in the medical records and the individual had reported different things to different clinicians.  The trust has not sought statements from the various clinicians. The court did not consider this course of action unreasonable as the cost would be significant.

The judge considered that the evidence was nevertheless fairly unambiguous and unlikely to have been misunderstood. The evidence in the medical records was also unlikely to have been invented.  Consequently, despite being hearsay, the medical records were afforded a weight which other hearsay evidence might not.

In a wider context there is often an inconsistency between medical records and the accounts provided by clients or indeed by experts. I routinely advise clients having listened to their account of events that the medical records may well say something completely different. This is often the case. Some of this is no fault of anyone’s because medical and nursing practitioners may emphasise different issues than that of the patient who has other areas of concern.  Often it is simply that concerns raised by a client have not been recorded. Medical records can be very poor when dealing with clients continually asking about procedures or risks involved in particular treatment.

This judgment however indicates that almost a good faith analysis should apply to medical practitioners. Doctors have not written the notes untruthfully; nurses have not invented medical records.

This case  actually reflects what most of us are aware of in practice. Judges are reluctant to look beyond medical records and challenges to this form of hearsay evidence are difficult.

The case itself also indicates perhaps a more aggressive attitude on the part of NHS Resolution in challenging claims.   Fraud is not usually an issue in clinical negligence. It is to be hoped that allegations of it do not appear often which will do much to damage the good working relationship between parties in this area of law to the detriment of all concerned and with an increase in costs for no good reason.

* 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.*

Detecting Atrial Fibrillation in primary care

A paper published in the British Journal of General Practitioners (BJGP) on 22 May 2018 has identified that opportunistic pulse-checking by GPs in the over 65 year old age group increases detection of an abnormal heart rhythm called atrial fibrillation (AF).

The study, performed at Barts and the London School of Medicine, which involved GP practices in City and Hackney, Tower Hamlets and Newham, used computer prompts, templates and performance feedback to encourage and remind GPs to take pulses during routine consultations. The study was a retrospective analysis of electronic records in the above three Clinical Commissioning Groups (CCGs) over 10 years, with the pre-intervention period being from 2007-2011 and the post-intervention period from 2012-2017. It was noted that, across the three CCGs, rates of pulse regularity checks increased from a pre-intervention mean of 7.3% to a post-intervention mean of 66.4%, reaching a significant 93.1% in the final year (n=58,722). The prevalence of AF in the over 65 year olds increased from the pre-intervention level of 61.4/1000 to 64.5/1000 post-intervention, and 67.3/1000 in the final year, which was an improvement of 9.6%, with 790 new cases of AF identified.

This was a significant increase in detection of AF of almost 10% over 5 years, the equivalent of preventing 28 strokes. However, there is no evidence-based national screening programme for asymptomatic AF, or irregular heartbeat, in the over 65 year olds in the UK, which means that GPs are depended upon for detecting it opportunistically when patients attend for other reasons. However, this puts yet more pressure on GPs during what is often only a 5-10 minute consultation dealing with other matters, and a national screening programme with proper and robust protocols and procedures would likely be beneficial.

The detection and management of AF is a significant matter. AF is the commonest arrhythmia seen in medical practice, characterised by an ‘irregularly irregular’ pulse, and it is associated with an increase in morbidity and mortality. The prevalence of AF increases with age, from about 0.5% of those aged 50-59 to 8.8% of those aged 80-89. It is estimated that about 25% of patients with AF are undiagnosed. The risk of strokes from AF, in which it has been implicated in 15-30%, can be significantly reduced with anticoagulants (e.g. warfarin, although there are also more novel anticoagulants available), by about two-thirds. The management of AF is costly, as is the failure to prevent strokes caused by it.

However, it is necessary for AF, which is often asymptomatic, to be identified before an adverse event has occurred so as to avoid a catastrophic event resulting in long-term, and costly, disability. ECG is the gold-standard investigation, demonstrating a loss of ‘P’ waves, but it has been considered as too time-consuming and expensive to be used as a screening tool, so opportunistic ‘screening’ by GPs has been encouraged instead. Nevertheless, the paper in the BJGP shows that such an approach hitherto has not been overly successful without further measures being taken.

Notwithstanding that there is no national screening programme in place in the UK and accordingly that the NICE (National Institute for Health and Care Excellence) guidelines presently do not recommend manual pulse palpation routinely in asymptomatic patients[2], it is arguable that a failure by a GP at a routine appointment to detect, by simple manual palpation of the pulse, asymptomatic AF would now be considered to be unacceptable, and illogical, practice. GPs should, therefore, be pro-active in routinely taking their over-65 year old patients’ pulses, most importantly so as positively to identify, and if necessary treat, those patients with asymptomatic AF, but also so as to avoid any potential criticism in failing to do so.

With respect to management, NICE recommends that all patients at high risk of stroke should be offered anticoagulants. However, it seems that some GPs still believe that the antiplatelet, aspirin, is an effective alternative to warfarin and it is claimed that up to 25% of AF sufferers are still on antiplatelet monotherapy. This is unacceptable, as the BAFTA trial demonstrated that aspirin is half as effective at preventing strokes as warfarin whilst still increasing bleeding risk. The NICE guidance is (as from 2014) explicitly against the use of aspirin monotherapy in AF patients and, accordingly, its use is likely now to be considered unacceptable practice.

Further, even when anticoagulation is appropriately prescribed, the dose, and therefore the individual time in the therapeutic range (ITTR), is significantly reduced, reducing the clinical effectiveness. This is also an area of possible criticism and the aim is to make sure that the ITTR is >65% .

A very helpful guide can be found at stroke.org.uk, titled AF: How can we do better?, updated in 2018, and it is well worth reading. It is evident that there is still significant room for improvement in the primary care sector in the detection and management of asymptomatic AF, both so as to reduce the number of avoidable catastrophic strokes that occur on a regular basis and to prevent the associated costs of related long-term disability, and also to avoid subsequent criticism of the detection and management of AF and possible consequential legal action.

* 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.*

NHS: learning from mistakes

Under the headline “NHS: learning from mistakes” in the Law Society Gazette this week (16 February 2018), the President of the Forum of Insurance Lawyers (FOIL), Mr Stephen Hines, makes a few observations upon which I think it is worth commenting. His article is itself an opinion following on from an earlier article in The Times (8 February 2018) regarding compensation pay outs by the NHS and whether the NHS was able to afford them. Whilst Mr Hines’ opinion piece is entitled to suggest that the NHS needs to learn from its mistakes, a sentiment with which I wholeheartedly agree, in fact much of the article is not really about that but, rather, is his view that the clinical negligence legal process needs reform to reduce excessive clinical negligence claims and costs which are so detrimental to the NHS.

Mr Hines begins by setting out the basis for his criticism: the numbers. He remarks that the National Audit Office predicts that the cost of clinical negligence claims will nearly quadruple by 2020/21 when compared with 2010/11. He does not comment on the breakdown of that increase: 45% being due to an increase in the number of claims (which can be reduced by less negligence), 33% due to an increase in the damages award (which will to some extent have been affected by the government’s change in the discount rate) and 21% due to an increase in legal costs (National Audit Office, 2017). He says that this increase has not been assuaged by the LASPO reforms in 2013, which came into force almost 5 years ago, but makes no comment that some clinical negligence claims last 4-5 years or more and that it is broadly accepted “on the ground” that we have still not yet seen the full effect of the LASPO reforms. In particular, he does not remark on NHS Resolution’s 2016-17 Annual Report which demonstrates in terms that the number of new reported clinical claims has been falling year on year since 2013/14 (11,945 to 10,686).

He says that “legal costs continue to increase relentlessly”, relying on data from NHS Resolution’s report that claimant lawyer costs have increased by 19% (to £498.5 million) whereas defendant lawyer costs have increased by only 5% (to £125.7 million). Whilst he does seem to be implicitly critical of NHS Resolution, he does not provide any reason for these costs increases, though he does observe the claimant side’s argument that the increase in costs is in large part because of defendant (including NHS Resolution) conduct. It is notable that NHS Resolution admits in its report that it (or, rather, its predecessor, the NHS Litigation Authority) failed to reach its KPI with respect to the response time to letters of claim. It is also notable that NHS Resolution observes that: “For the first time since 2004/05 the average claimant legal costs as a percentage of the total claim value has fallen slightly (where damages are between £1 to £100,000)”. It is perhaps worth commenting in passing that the NHS Annual Budget is £124 billion; clinical negligence costs and damages were £1.7 billion in 2016-17 (1.37% of the Budget), of which the cost of the lawyers was £0.62 billion (0.5%).

Mr Hines further observes that “The costs of rehabilitation are also on the up, and there is the additional issue of double recovery”. However, he does not remark that the discount rate was increased by government a year ago or that the Wokingham case that he quotes in his article was the court confirming that “The Care Act 2014 and the associated ‘charging regulations’ make it clear that while councils can expect people with capital over £23,250 to pay for their own care, some forms of capital must be disregarded. These include capital derived from an award of damages for personal injury which is administered by a court, or the value of the person’s main or only home where the person is receiving care is not in a care home” (John Hyde, 2018) with The Care Act and the charging regulations having been legislated by government.

Mr Hines asserts that it is not just about the numbers, though, but also about the impact of clinical negligence claims on medical care. He opines that, although there were cases that NHS Resolution resolved without payment of damages (some 6,553 in 2016/17), “settlements of this kind harbour concealed costs to the NHS, such as doctors and nurses being taken away from the frontline, which does nothing to assist with the adequate provision of care for other patients”. I do not understand his figure, though, as NHS Resolution’s report states 5,252. Nor do I believe that these are “settlements”, as no damages were paid, as opposed to just claims that were notified to NHS Resolution but then abandoned after investigation and before issue of proceedings. Mr Hines also provides no evidence to support his assertion that these types of cases take away doctors and nurses from the frontline. In my experience, such staff will often already have been involved in the case at the behest of their employer NHS Trust in response to an adverse incident having occurred and an internal inquiry or investigation taking place upon which they are required to make a statement. This has usually taken place well before any such clinical negligence legal process gets underway and is, in any event, necessary for appropriate internal Trust governance and quality standards.

Mr Hines also turns to the age-old argument that litigation creates defensive medicine. He may well be correct about this, on at least some level (although he cites no statistics), but doctors would be wise to read the BMJ article on the subject, and in particular advice from the Medical Protection Society, “Follow the principles of good medical practice”, and the General Medical Council, “Make the patient your first concern”.

Having set out the numbers and the effect on the NHS, Mr Hines does acknowledge that “the outcome of medical negligence is often life-changing and sometimes catastrophic – a drawn-out litigation process will only make the trauma experienced by the claimant more acute”. Correct. He then observes, “The system is clearly in need of an overhaul, and the government should prioritise this to alleviate the pressure placed on claimants and NHS staff alike”. Also correct, if one is to assume that the system he is referring to is the one in his title – the NHS – and that NHS staff should stop making and repeating clinical errors that result in harm and should learn from their mistakes.

It is correct and obvious that NHS Resolution and its defence lawyers should admit liability and settle cases early to keep legal costs down, and the claimant side have been saying this for years; and Mr Hines is right to identify the steps being taken by NHS Resolution to create a more effective early ‘process’, including the mediation scheme and the proposed Rapid Resolution and Redress scheme. However, one cannot escape the basic tenet that the most effective way to reduce the impact of clinical negligence claims is to prevent mistakes in the first place, not to reform the processes by which compensation is awarded to victims. A problem, though, is that the NHS still has a long way to go when it comes to learning from its mistakes and, until that day, injured victims will be dependent upon an appropriate legal process and reform of that process is not the answer. It must be remembered that it was on 13 June 2000 that the then Chief Medical Officer published a white paper on the NHS entitled “An organisation with a memory”, in which “the recommendations of this expert group are designed to ensure that lessons from the past are used to reduce the risk to patients in the future” given that “Specific types of adverse events are seen to repeat themselves at intervals, thus demonstrating that lessons have not been learned”. For those of us who were working in the industry when that paper was published, and continue to do so, since our cynicism will have to be excused given that, in those 18 years, the key statistic is that adverse clinical incidents continue to increase year on year: “Incidents reported in the 12 months July 2016 to June 2017: 1,928,048 incidents were reported for England. This is an increase of 6.9% compared to the previous 12-month period: 1,803,345 from July 2015 to June 2016” (NHS, 2017).

The NHS faces a multitude of problems and pressures involving a combination of complex, interlinking factors, with litigation being just one and a relatively small one at that. These factors include an ageing, increasingly obese and increasingly demanding population; hospital activity outstripping NHS funding with underinvestment by government; an over-bureaucratic NHS, with poor investment and finance governance; poor staff pay, working hours and morale; doctors and nurses leaving the NHS and/or not able to be recruited (which will stretch an already under-staffed, under-resourced NHS resulting in more mistakes and more compensation claims: the perfect storm); and the list goes on.

Mr Hines does not actually make substantive comment on the subject matter of his article: that adverse clinical incidents continue to increase and how the problem of learning from them to avoid them might be tackled. In fact, what he really appears to be after is reform of the way clinical negligence claims and potential claims are handled. This is evidenced by him in his article stating, “It is evident that the way clinical negligence claims are lodged and contested needs serious reform” and commenting on Clare Foges’ article ‘Many NHS victims should settle for apology‘ (Times, 5 February). In my view, the government needs to be focusing on tackling the prevention of clinical negligence in the first place rather than messing about with reform of the legal process of civil litigation, which to my mind is trying to close the stable door after the horse has bolted, and which also reduces the access to justice for some state-injured victims

In his final sentence, Mr Hines comments on Lord Sumption’s speech in November 2017 advocating no-fault liability, although the latter accepted his was a minority view. He was, though, discussing all personal injury claims and not just clinical negligence, noting: “According the Association of British Insurers, the corresponding figure [for the number of personal injury claims] for 2013-14 was about 1,200,000. Almost all of this increase was attributable to road accidents, which now account for about 80% of all accidents”. This must be contrasted with the figure from NHS Resolution of new clinical claims of 11,945 for the same year, which is less than 1%. Be that as it may, I suspect in reality, as President of the Forum of Insurance Lawyers, Mr Hines’ interests in Lord Sumption’s support for no-fault liability lie far further afield than just clinical negligence.

* 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.*