Sam David is now a Partner in the Injury & Medical Claims team

Anthony Gold is delighted to announce that Sam David has accepted an offer to become a Partner at the firm with immediate effect.

Sam David New Partner

Sam becomes a Partner in the Injury & Medical Claims team at our London Bridge offices, supporting individuals whose lives have been turned upside down as a result of suffering catastrophic personal injuries through accidents or clinical negligence.

Sam joined Anthony Gold in August 2014 as a paralegal, qualifying in 2016. He has since dedicated his career mainly to personal injury work, becoming a Senior Associate in November 2020.

He works closely with Jenny Kennedy, one of the UK’s most highly regarded personal injury lawyers, on a wide variety of cases.  These range from catastrophic personal injury to road traffic collision cases and brain and spinal cord injury. He has specialist knowledge of foreign national claims, helping people who have been injured whilst working or holidaying in the UK, as well as British Nationals injured abroad.

Sam provides compassionate, pragmatic, and realistic legal advice to his clients and their families.  He aggressively pursues the best financial settlements possible with the aim of securing comprehensive rehabilitation for his clients.

This move sees Anthony Gold building on its strengths in high-value Personal Injury and Medical Claims, with its strong rankings in Chambers and Partners (Personal Injury: Band 1; Clinical Negligence: Band 2) and The Legal 500 (Personal Injury: Tier 1; Clinical Negligence: Tier 2).

Jon Nicholson, Head of Injury & Medical Claims said: “Sam manages a complex caseload effortlessly and partnership is the next step in his career.”

Managing Partner, David Marshall, said: “I am delighted Sam has made Partner at the firm. This is part of a concerted effort to consolidate and secure our leading positions in Injury and Medical claims and ensure the firm has talented practitioners in place for its future growth.”

Action for Brain Injury Week 2022

Written by Mumtaz Hussain

See the Hidden Me

This week is “Action for Brain Injury Week”, an annual campaign led by the national charity Headway, whose key aim is helping those who have suffered from a brain injury. The theme this year is “see the hidden me”, and it seeks to highlight the many unseen challenges faced by those who have suffered a brain injury.

As a team of personal injury and clinical negligence experts, we are passionately focused on providing the best quality of legal advice for our clients who, through no fault of their own, have sustained a brain injury.

Legal Expertise Plus Support

Where we put our considerable expertise towards ensuring our client’s legal battle is hard fought and successful, we also maintain strong ties with organisations such as Headway so that our clients have a support network that runs alongside their legal case, and will continue beyond the life of their case.

Get Involved

For many people who have suffered a brain injury, their predicament is largely unseen. Headway wants the campaign to “raise awareness and understanding of the often misunderstood symptoms of a brain injury, and work to alleviate the challenges, and frustrations, survivors face”.

One of the ways you can get involved is by wearing a hat for their “Hats for Headway” day (May 20th). All you have to do is wear a hat, take a photo, make a donation and help raise awareness of the struggles of those affected by a brain injury. Your photo could even win you a luxury hamper from Fortnum and Mason!

Spinal Cord Injury Awareness Day

Written by Mumtaz Hussain

Today May 13th is “spinal cord injury awareness day”, an annual event led by Spinal Injuries Association. The theme this year is to highlight the many daily challenges faced by those who have suffered a spinal cord injury.

Often it’s easy to take simple things for granted, such as filling the kettle for a cup of tea or making the bed. However for someone with a spinal cord injury these simple tasks can present as a major challenge. Climbing stairs can also be very difficult, and sometimes simply not at all possible, depending on how complete their injury is.

We have previously heard from our own Hema Vekaria, an Associate solicitor on our personal injury team, who sustained a spinal cord injury in 2018. Hema has written about her experience in this personal account.

All spinal cord injuries are different and recovery varies from person to person. Fortunately Hema is able to walk although she was a wheelchair user for a time. As a result of having experienced first hand what it means to sustain such an injury, Hema is easily able to empathise with her clients who have sustained similar injuries.

As a team, we are passionately dedicated and focused on providing support for our clients who, through no fault of their own, have sustained a spinal cord injury. Where we provide our considerable expertise to ensuring our client’s legal battle is hard fought and successful, we rely on collaborations with organisations such as Spinal injuries Association, so that our clients also have a support network that runs alongside the legal side of matters.

Spinal Cord Injury is an Insult to The Spinal Cord Resulting in a Change

Spinal Cord Injury

Spinal cord injury (SCI) is an insult to the spinal cord resulting in a change, either temporary or permanent, in the cord’s normal motor, sensory, or autonomic function. Such injuries can result in tetraplegia, paraplegia, or death.

It is now understood that approximately 2,500 people sustain or are diagnosed with a life-changing SCI each year in the UK and the total number of those living with a SCI in the UK is estimated at 50,000. SCI is a complex condition that can affect all bodily systems. This blog deals briefly with spinal anatomy and the classification of SCI.

 

Spinal Anatomy

The spinal column consists of 5 regions, as follows:

  1. Seven cervical vertebrae: (C1 to C7). The neck region which has the greatest range of flexibility and supports the full weight of the skull.
  2. Twelve thoracic vertebrae: (T1 to T12). The upper to mid back; its main function is to hold the ribcage, which in turn protect the major organs.
  3. Five lumbar vertebrae: (L1 to L5). The lower back. Its main function is to support the body’s weight.
  4. Sacrum: (S1 to S5). Pelvis region, connecting the spine to the hip bones.
  5. Coccyx: The tailbone, the final segment of the vertebral column with attachments to various muscles, tendons and ligaments.

 

Classification of SCI

Spinal cord injuries can be classified based on function (how much feeling and movement you have) and on where the damage occurred. When a nerve in the spinal cord is injured, the nerve location and number are often used to describe how much damage there is. For example, a C7 injury is associated with the seventh cervical nerve of the neck and its effect on feeling and movement. The higher the damage occurs on the spinal cord, the more of the body is affected.

The American Spinal Injury Association (ASIA) define the International Standards for the Neurological Classification of Spinal Cord Injury. The ASIA Impairment Scale assigns the SCI a grade based on its severity. The ASIA Impairment Scale determines the category of SCI, which typically is complete or incomplete:

  • Complete SCI occurs when there’s a total loss of function (motor) and feeling (sensory) below the injury level.
  • Partial/incomplete SCI: some function and feeling remain below the injury level. Typically, one side of the body has more function or feeling than the other side. There are different types, or syndromes, of incomplete SCI, including central cord syndrome, Brown-Séquard syndrome, anterior cord syndrome, and posterior cord syndrome.

 

Grades range from A to E, with A being the most severe injury and E being the least severe, as follows:

 

Grade A      –          Complete      –      Complete sensory or motor function loss below the level of injury.

 

Grade B       –          Incomplete    –     Sensation is preserved below the level of injury, but motor function is lost.

 

Grade C        –        Incomplete       –    Motor function below the level of injury is preserved, with more than half of the main muscles receiving a less than 3 grade on the    ASIA motor score.

 

Grade D      –          Incomplete     –    Motor function below the level of injury is preserved, with more than half of the main muscles receiving at least a 3 or greater grade      on the ASIA motor score.

 

Grade E        –         Normal          –       Normal sensation and motor function.

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.

[1] https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/215680/dh_125350.pdf

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.

Tech client receives damages of over half a million

I recently concluded High Court proceedings for a client who was formerly a top executive at a one of the world’s biggest internet companies.

Following injury in a road traffic accident in 2017 my client underwent major surgery to his leg. He had a top legal career before this, working at leading law firms. In recent years he had worked in-house at some of the world’s biggest telecommunications and web-based companies.

Lost Earnings

My client’s previous solicitors had not instructed rehabilitation providers; his return to work was rushed and his employer offered limited assistance. After little progress had been made with the claim, my client grew unhappy with his legal advisors and instructed Anthony Gold. I have considerable experience in handling cases taken over by other firms. Despite it being some years since his injury, I was able to secure interim payments on account of his damages to pay for the further treatment needed and reimburse to my client some of his considerable lost earnings.

It is possible to consider a claim under employment law should an individual be treated unfairly in their return to work following serious injury. In this instance my client had taken advice and left his employment for a new job, having entered into a compromise agreement, prior to my involvement. The question was, to what extent was he entitled to future loss of earnings on account of his injury.

I took advice which confirmed that my client’s claim was not prevented by the compromise agreement he has entered into. Following this it was necessary to understand my client’s remuneration package which was made up of income from his salary but also bonuses and share options based on company performance. I instructed a forensic accountancy expert to establish my client’s likely earnings but for his accident, which were considerable. It can be difficult to get the Court’s permission for such evidence on account of the cost, but it was secured on this occasion.

The difficulty is that the Court would not award my client’s lost earnings unless it could be established through evidence that absent the accident he would have stayed in his previous role, or a similar one. My client had already left and secured an insurance position earning considerably less money. It was therefore necessary to secure evidence from his former employer in support of the claim that he would have remained in their employment but for the accident.

Obtaining Evidence

I obtained my client’s personnel and occupational health files as part of my investigations. I also obtained witness statements from several of his former colleagues including those working alongside my client, in the most senior positions in the company at the time.

Some of the evidence was favourable to my client and some not, as it concerned his likely longevity in his role. That was, to some extent, expected, given that his employer was one of the world’s fastest growing companies with a high turnover of talent, as people tended to remain in their roles for a limited number of years before moving on.

Counsel had advised throughout. As part of my pre-trial strategy I considered it important to instruct Leading Counsel to advise on the likely outcome at Court. After the evidence was tested in conference it was acknowledged that the Court would likely consider the picture complex and could have decided the important issues either way.

As is usual in high value litigation claims the parties sought to discuss matters on a without prejudice basis before incurring the considerable costs of trial. Several of the insurers’ offers were refused until a compromise was reached which was to my client’s satisfaction. Aside from the issue of having to change jobs my client thankfully went on to make a reasonable recovery from his injuries with only minor issues ongoing.

Two lessons this solicitor has taken from the Ockenden Report

Last week Donna Ockenden produced her comprehensive, considered, and heart-breaking report[1] into maternity care across at the Shrewsbury and Telford Hospital NHS Trust. Throughout those 250 pages she placed patient experience and the stories of those brave families who came forward at the heart of her report. Anyone who has taken the time to read the report’s conclusions can be in no doubt that something is broken within our NHS and, in particular, with respect to maternity care.

I am sure that there will be much commentary and thoughts being expressed about the details within those pages: there is simply so much to say and so much to learn. Without wishing to add yet another voice to the articles out there (although I do note that, as too often is the case, the lessons and stories within these pages have now fallen out of mainstream media reporting), I wanted to discuss two key themes which, at least for me as a claimant clinical negligence solicitor, came though.

Patient choice in maternity care

A key theme which struck me, perhaps because I am reaching that age where many of my nearest and dearest are accessing maternity services themselves, was the fixation the Trust’s maternity teams placed on women undergoing a natural birth. Within the Ockenden report it is noted that women were made to feel that a natural birth was their only option and there were yet further examples of families feeling as if their thoughts and concerns were not being listened to.

This certainly struck a chord with me as I recalled a conversation with a close friend 12 months ago when she was undertaking her own birthing plan. She had read the literature and NICE guidance surrounding a planned caesarean section vs natural birth and her preference was for the former. From her own lived experience, she had seen more close friends be rushed in for an emergency caesarean and all the trauma that went along with that and, having balanced the risks and benefits of both delivery options, she wished for a planned caesarean. Yet, when she discussed this with her treating clinicians, they were aghast at such a suggestion, and they did all they could to push her down the natural birth route. She had to fight incredibly hard for her and her husband to have the birth plan they wished for and without support from the charity Birthrights[2], several long letters, a request to change consultant and some ad hoc advice regarding Montgomery (the leading case on consent and patient choice), she would never have got there. Not everyone will and can be that tenacious.

If Montgomery has taught us nothing, it is that patient choice and the patient’s voice should be at the heart of matters. It is arguable that it should not have taken Montgomery to change matters, as the BMA had been saying for years risk is both objective and subjective and clinicians should be taking the particular concerns of their patients on board, yet with maternity care, we still seem to be operating in a paternalistic sphere where a woman’s voice and her concerns are not being listened to.

Learning from mistakes

Another theme which rang out throughout the report was the systemic failure to learn from mistakes, which I dare say is not unique to either this Trust or maternity care. I would like to think that those working in my profession would agree that we see the same themes time and time ago: whitewashed internal investigations that gloss over the key issues and Trusts who make the same mistakes over and over again. It is clear that, by marking their own homework, Trusts do not learn, and it is arguably questionable how much they learn from external “independent” organisations such as the HSIB. So where does clinical negligence litigation fit into all of this?

In May 2021, Getting It Right First Time (GIRFT) and NHS Resolution (NHSR) produced a best practice guide for clinicians and managers on how to learn from litigation claims. Why it took until 2021 to produce such a guide I do not really understand, but leaving that aside, it was noted in that report that quite often frontline clinical staff did not know about claims arising from care and treatment provided in their department let along their own hospital, or other hospital Trusts. Litigation is not and should not be a barrier to internal learning and information sharing within a Trust and yet, for some reason, it is seen as so. This is not the claimant’s doing, but it is a failure by Trusts and NHSR to ensure that themes are being identified and addressed. NHSR collects data on individual Trusts, as they use such data to calculate the premium each Trust must pay into the Clinical Negligence Scheme for Trusts. Why isn’t more information being gathered? Why are Trusts looking to attribute blame when investigating matters, rather than focusing on the root cause that caused the incident to arise?

Some final thoughts on claimant shaming

Too often we see the claimant being blamed: the costs are too high, and the system needs to be reformed so we have “no fault” damages. Let’s tackle those two issues head on shall we, particularly when the Medical Defence Union are suggesting to MPs that the new national insurance levy will be “swallowed up” by clinical negligence claims!

The costs associated with clinical negligence litigation have remained relatively static over recent years and in fact the most recent NHSR data reveals that the legal costs associated with bringing a claim are, in fact, going down. It should also be noted that unlike claimant solicitors, who in the vast majority of cases act on a CFA (“no win no fee agreement”) and do not get paid unless they are successful, defence solicitors are paid regardless of outcome. Defence experts and barristers often charge significantly reduced rates to their NHSR or medical indemnifier clients, whereas claimants must pay market rates. Some judges are alive to that fact, and it is heartening to hear this acknowledged when attending a court hearing dealing with legal costs: yet those who do not work in this area often are not.

Secondly, no fault damages will arguably engender an even greater culture of failing to learn from mistakes and understanding precisely what went wrong. Certainly, in my practice, most claimants end up at my door after going through an internal complaints procedure and not having their concerns addressed. Often patients are reassured that changes will be made and yet they see little to no evidence of that happening. Litigation, for a claimant, provides an avenue for answers which too often a Trust or private healthcare organisation is unwilling to give.

Claimants do not seek out a solicitor because they do not appreciate, love and respect the NHS system which cared for them: they do so because they care for it and they want to ensure that the same issues do not arise again. They want to fix what is broken as well as ensuring that their own lives, which are too often shattered by instances of negligence, are put back together as best they can be.

[1] https://www.gov.uk/government/publications/final-report-of-the-ockenden-review

[2] https://www.birthrights.org.uk/factsheets/right-to-a-c-section/#:~:text=You%20might%20be%20advised%20to,your%20baby%20to%20be%20born.

Changes affecting personal injury claims from April 2022

April is typically a month for changes in the legal landscape, including amendments and updates of the Civil Procedure Rules (CPR) and April 2022 is no exception.

There are quite a few changes taking place, including but not limited to the following:-

1.New claims to be issued in the county court usually up to the value of £50,000 on or after 4 April 2022 need to be issued online rather than on paper using the “damages claims portal”. This is following amendments to Practice Direction 51ZB, effective from 4 April 2022. Users are required to register themselves to the MyHMCTS platform in order to use the portal.

Whilst it is expected that solicitors instructed by insurers will be aware of the changes, notice of claims being issued online are required to be given so that defences may also be filed online.

Failure to issue online may result in sanctions, which will be at the court’s discretion. There will no doubt be all the teething issues that come such technological changes.

2. The Civil Procedure (Amendment) Rules 2022 are effective from 6 April 2022 and include changes to:

a) The small claims track, with the “small claims limit” for non-road traffic claims increasing from £1,000 to £1,500 for accidents which occur on or after that date or where the date of knowledge is on or after 6 April 2022. However, this will not apply to “vulnerable” road-users such as pedestrians, cyclists, motorcyclists and horse riders. The changes also do not apply to claims involving children. In practice, this change may not affect vast majority of cases. Procedurally, in view of the changes which have affected the personal injury claims industry over the last few years, for most practitioners it may mean taking extra care, for instance when drafting a claim form for instance to specify that the value of the claim exceeds £1,500 to avoid any technical challenges.

b) CPR Part 10 in relation to Acknowledgement of Service, removing the Practice Direction but consolidating some of the text in the substantive rules.

c) CPR Part 12 related to Default Judgment, also removing the practice direction and incorporating some of the text in the substantive rules.

d) CPR Part 39 to widen the application of granting anonymity to a “person” rather than the current “party or witness” (rule 39.2 (4) if the court thinks this is fit for securing a “proper” administration of justice following the case of Brearley v Higgs & Sons (a Firm) [2021] EWHC 1342 (Ch).

e) Part 47 with regard to the powers of an authorised costs officer, for purposes of clarification following issues highlighted in the case of PME v Scouts [2019] EWHC 3421 QB and PME v Scouts [2019] EWHC B10 where it was concluded that an authorised court officer has no jurisdiction to undertake a provisional assessment of legal costs.

As can be expected there are other changes being proposed to try and simply the CPR and which are currently under consultation.

Simplification of any rules that help further the proper administration of justice can only be a good thing.

Changes To The Highway Code Cyclists Should Be Aware Of

The weather is noticeably improving as the Spring sunshine is upon us. People will quite rightly want to enjoy the outdoors. Naturally there will be an increased number of cyclists out on the roads.

Cyclists are a group of vulnerable road users and data indicates this group is more likely to sustain traumatic injuries when involved in an accident.

It is important cyclists are aware of the changes to the Highway Code which came into force on 29 January 2022 and are designed to make the UK’s roads safer for cyclists.

The updates to the Highway Code provide a greater level of clarity of the responsibilities amongst road users, highlighting that cyclists and pedestrians are the most vulnerable.

The Code emphasises that drivers and motorcyclists need to give way to cyclists when cyclists are approaching, passing or moving off from a junction, moving past or waiting alongside stationary or slower moving traffic and travelling around a roundabout.

The changes cyclists should now consider are:

  • Cyclists are now advised to ride in the centre of their lane to increase visibility on quiet roads, in slow moving traffic or on the approach to junctions. This rule would prevent a cyclist from being injured by a vehicle overtaking when there is insufficient space on the road. Maybe another answer is to offer cyclists more protection by creating more designated cycle lanes.
  • Cyclists should now give way to a pedestrian who is waiting to cross a road into which, or from which, they are turning.
  • Drivers should not turn at a junction if it causes the cyclist going straight ahead to stop or swerve.
  • The Highway Code now specifies that cyclists should leave a door’s width or one metre when passing a parked vehicle to avoid them being hit if a car door opens. The new “Dutch reach” method means that drivers and passengers must reach to open a car door using their hand on the opposite side of their body, forcing them to look over their shoulder for any cyclists or passers-by.
  • On roundabouts, no attempt should be made to overtake a cyclist within that cyclist’s lane and the motorist should give way to cyclists and allow them to move across their path as they travel around the roundabout.
  • The revised Code also permits the cyclist to stay in the nearside lane as they travel around the roundabout, however the cyclist must signal his/her attention to other vehicles.
  • The old Highway Code said motorists should allow the same passing distance for a cyclist as they would for a car. This was often ignored or considered unclear, so the new rules provide more specific advice: “leave at least 1.5 metres when overtaking cyclists at speeds of up to 30mph, and give them more space when overtaking at higher speeds.”

The changes made to the Code are to be welcomed but a more concerted effort must now be made to communicate the changes to all road users in order to promote cyclists’ safety.