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.

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.

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”

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.

Divorce Financial Settlements and Damages from Injury and Medical Claims

What part of a compensation award is regarded as part of the marital asset pot available for distribution in the event of divorce or judicial separation?

Under the Matrimonial Causes Act 1973 (MCA) the family courts must have regard to the factors contained in section 25. The court should give primary consideration to the welfare of any minor children of the family. There is then a statutory checklist which requires the court to consider factors such as the needs, obligations and responsibilities of the parties, the length of the marriage, the standard of living enjoyed during the marriage, any physical or mental disabilities, the parties’ contributions and, in exceptional cases only, conduct. No one factor trumps the others and the courts pride themselves on creating a bespoke solution for each case.

This approach can cause significant anxiety to clients particularly as the MCA has developed alongside much needed case law. For instance, in White v White (2001) 1 AC 596, (2000) 2 FLR 981, the court, in considering all the circumstances, was obliged to go through the process of looking at any proposed division of assets against a yardstick of equality. Often the case starts and finishes with needs and complications arise where there is a surplus of assets (should some be ring fenced?) or, at the other end of the scale, not enough assets to go round.

Where a significant asset in a marriage comes from an award for damages, there are surprisingly few reported cases over recent years. The leading case is still Wagstaff v Wagstaff (1992) 1 WLR 320. Per Butler-Sloss LJ:

“The reasons for the availability of the capital in the hands of one spouse, together with the size of the award, are relevant factors in all the circumstances of section 25. But the capital awarded is not sacrosanct nor any part of it secured against the application of the other spouse….

.. any calculations made in respect of the capital of the parties should reflect a substantial discount for the fact that the money was received as damages. In general, the reasons for the availability of the capital by way of damages must temper the extent of, and in some instances may exclude the sharing of, such capital with the other spouse. It is important to stress yet again that each case must be considered on its own facts.”

And in his judgement, Lord Donaldson, MR, said:-

“.. compensation is a financial asset which, like money earned by one spouse by working excessively long hours or in disagreeable circumstances, is (subject to human selfishness) available to the whole family before the breakdown of the marriage and, like any other asset, whether financial or otherwise, has to be taken into account when the court comes to exercise its powers in accordance with section 25 of the Matrimonial Causes Act 1973. In so far as it represents compensation for loss of amenity, as contrasted with pain and suffering, there might be a need to spend it on acquiring a replacement amenity, but this would be financial need within section 25 (2)(b).”

In the case of Wagstaff the parties were married in 1976. W had been married previously and had two children by that marriage. H assumed responsibility for them. In 1981 H suffered serious injuries in a RTA. He became paraplegic. H and W separated in 1983. W retained the family home, a rented council house which she purchased for £10,500, and on separation the value was £24,500. In 1984 W petitioned for judicial separation and in 1985 obtained a decree. In 1988 H received a damages award of £418,000. At the first hearing the deputy district judge (then deputy registrar) took H’s damages into account but made a large discount to W on the basis that H’s capital derived from his PI award. He awarded W £32,000 on a clean break basis. H appealed. By the time of the appeal W had purchased a property with a colleague from work. That property was purchased for £65,000 with a deposit of £25,000 and a mortgage of £40,000. On sale W was to receive the first £30,000 and one half of the balance of the equity.

Her only other capital was £5,000. She had a modest income from her employment working for Norweb. Prior to the accident both H and W had enjoyed a modest lifestyle. H had in the region of £291,000 from his original damages award, having invested some of the award unwisely in a health club (premises alone costing £75,000). A further sum of £63,000 had been invested in that business which was unlikely to yield an income for many years.

The judge allowed H’s appeal. No lump sum award was made to W.

W then appealed seeking a larger award. The Court of Appeal agreed with the deputy registrar and restored his order providing for W to receive £32,000.

The Court of Appeal found that the judge below treated H’s disability and consequential needs as very important but attached too much weight to it and lost sight of W’s needs.

The case of Mundell v Name 1 (2019) 4 WLR 139 primarily involved capacity to marry in circumstances where a vulnerable adult planned to marry and the applicant, the deputy appointed by the Court of Protection, applied for a declaration that the vulnerable adult lacked the relevant capacity to marry.

The matter came before Mostyn J who refused the deputy’s application, stating that the right to form a marriage was a fundamental right and had been for centuries. It is an interesting case because the judge looks at the history of the marriage contract and some of the case law mentioned is over 100 years old.

For the purposes of this article it is worthwhile reflecting on the final part of the judgement in which he says:-

“I would say this, however, if this marriage happens and then later breaks down and a financial claim is made, then the scope of any claim is necessarily going to be extremely limited, given that the entirety of Name 1’s means derive from a personal injury compensation payment which will have been calibrated by reference to his needs. There are numerous authorities in the books which have effectively emphasised the near-immunity of personal injury awards from a financial claim. So, the extent of any claim that were to be made on the breakdown of this marriage, were it to happen, would be limited, in my provisional prognostication at this point, to alleviating serious financial hardship and no more.”

That is a bold judgement and it does not represent my interpretation of the limited published case law.

In Mansfield v Mansfield (2011) EWCA CIV 1056, (2012) 1 FLR 117 H received an award of damages of £500,000 in 1988, before he had even met W. H and W married in 2003 and separated in 2008. There was 18 months’ pre-marital cohabitation so the relationship endured for 6.5 years. Their twin children were four years old at the time of the appeal hearing.

H had invested his damages in two properties. One was specially adapted to his needs (Orchards) and the other was a flat which was let out for investment income. Post separation, H remained in Orchards and W rented accommodation for herself and the children. W had invested £30,000 from the sale of her pre-marital home in Orchards. The sole question for the court was the extent to which the judge should reflect the origin of the family assets in a substantive award.

At the first hearing the district judge awarded W £285,000. In default of payment, Orchards was to be sold and W was to receive 63% of the sale proceeds or £285,000 whichever was the greater. H appealed but the circuit judge dismissed his appeal. H sought to appeal again and was given permission to do so.

At first instance, the district judge who had heard the case had noted that the damages were available for distribution, but she had not noted the guidance from earlier cases; namely that each case should be looked at on its own facts and the sharing rule should be tempered to reflect the needs of the recipient and the special nature of the compensation award.

The Court of Appeal felt the first question was whether the award of £285,000 was sustainable in view of the misdirection in law. In the leading judgement of Thorpe LJ he was reluctant to interfere with the “careful finding” that £285,000 was the minimum that W needed to meet her needs and those of the children and that H’s needs could be met by the remaining £320,000. Thorpe LJ thought that the award was on the high side but concluded “it would be unprincipled for this court to interfere. Having heard none of the oral evidence, such interference would not show proper respect for the function of the trial judge”.

On the second question; namely whether the trial judge was right to refuse the application of the husband for a chargeback, Thorpe LJ found H’s case “overwhelmingly good”.

“The need to give special regard to the origin of the family capital and the special purposes for which it was provided … can be properly reflected in converting the order below into a Mesher order. The rationality of that is obvious. There is a fixed amount of capital within the family. For the immediate future the wife’s need for a substantial share rests upon her function as the primary carer.”

The judge quantified the chargeback at one third of the capital awarded to the wife, the charge to be redeemed when the twins achieved maturity.

The most recent case which involves a compensation award is AZ v BZ (2020) EWFC 28. The case was anonymised to the extent that the parties’ ages were redacted and even the date of separation. The appeal from a district judge came before Vincent J and we are told that the parties were together in 2011, married and there was a final hearing in 2019, so I am assuming this was a medium length relationship.

W had cancer before the marriage, the recurrence of which was not detected by scans. This meant further extensive treatment and a negligence claim against the NHS in 2015, as a result of which W received £550,000.

Part of the compensation award was invested in a property in Spain which was worth £195,000 at the final hearing. The rest was spent on living expenses for H and W, including several family holidays in Spain. During the marriage H was unemployed for two periods as a result of his ill-health.

Shortly after the separation H agreed that £70,000 (the balance in a trust account) should be paid to W. It was not entirely clear what she did with it but £21,000 was loaned to her new partner and £10,000 was spent on a car.

At the time of the hearing before the district judge, H was earning £25,000 per annum and had debts of £15,000 (a car loan) and a small pension. W also had a small private pension and an NHS pension resulting from part-time work.

The district judge made a finding that H’s needs were less than W’s. However, H had contributed £20,000 from his own money in the early part of the marriage and had debts of £21,000 (£15,000 car loan and £6,000 soft loan).

The district judge made an order that the Spanish property would be sold and H would receive £21,000 from the net proceeds of sale.

H appealed and I can only assume that his legal team did so with a heavy heart as this was not a high value case and presumably the legal costs were significant. W was a litigant in person as she had been at first instance but H had legal representation at first instance and on appeal.

The appeal was allowed and the district judge’s order was set aside. In essence, the judge felt the district judge’s order was unfair as the assets were divided 99% to W and 1% to H. He held that the district judge had unreasonably favoured the litigant in person, W, and had made unfounded conclusions about her needs which she had quantified at £180,000. The district judge had unreasonably admitted evidence from the clinical negligence proceedings but this was simply an extract from counsel’s opinion and not an expert opinion or witness statement. It was held that the district judge had written-off H’s housing needs and noted that W had spent £70,000 post-separation. Vincent J held that the district judge had been wrong to reach the conclusion that the case amounted to whether W’s needs outweighed H’s and that W’s needs were just one of the Section 25 factors.

Unsurprisingly, whilst the first instance order was set aside, it was felt that a rehearing would be a huge burden on both parties in terms of delay and costs so the judge substituted his own award and concluded:-

  • The starting point after a marriage of this length was 50:50.
  • The sale of the Spanish property and an equal division would give H and W £97,500 each and it was found that H could obtain a mortgage.
  • W would still be better off than H because her pension fund was larger and she had a car worth £18,500. Her new partner could repay her the loan amounting to £17,000. She had an assured tenancy so her accommodation needs were met.

This amounted to a 60:40 split in W’s favour and took into account the fact that she had received £70,000 following the separation, of which 50% could be said to be H’s entitlement.

Yet again this was a case where it was practically impossible for provision to be made which would meet both parties’ needs.

What principles can be drawn from these cases?

As always it is difficult to draw principles from family cases as many cases are fact-specific, added to which we have the fuzzy discretion of the family courts and the difficulty in predicting outcome. However, in the Section 25 balancing exercise, weight must be given to the party who has suffered a disability/injury even when those injuries are serious, but not to the extent where the court should rule that the needs of one party outweigh the others.

In AZ v BZ, Vincent J made it clear that a large part of compensation payments would generally relate to loss of earnings and this should not be ringfenced as a matrimonial asset. However, the courts still have a statutory duty to give first regard to the welfare of any minor children whilst dependants. A convenient way of dealing with competing needs is to impose a Mesher type order which was the case in Mansfield. As most of you will know, this follows the well-known 1980 case of Mesher v Mesher & Hall but it is essentially a postponement of the exercise of the trust for sale of a home until a named event occurs. That event is normally linked to the dependency of the children so that an order for sale could, for example, be made when the children have ceased full-time education.

Another convenient way of dealing with competing needs and those of the children is to impose an order based on the principles established by schedule 1 of the Children Act 1989 so that the advance of funds from a compensation settlement are made purely to assist with housing a child during minority years. Any monies so advanced are then returned to the party in receipt of the compensation award upon that child attaining the age of 21 or ceasing full-time tertiary education.

Nuptial agreements of all sorts are now given increasing weight by the family courts and I would urge injury and medical claims lawyers to advise on the importance of these for married couples and those who intend to marry to ensure that a client’s compensation payment meets short and long term needs. A carefully crafted nuptial agreement could go a significant way to protecting the settlement by setting out the division of assets in the event of a divorce and making it clear to what extent a compensation settlement is regarded as a marital asset.

For unmarried couples, there is the potential to make financial claims on behalf of a child under Schedule 1 of the Children Act 1989 which can include a lump sum, settlement or provision for property for the benefit of the child, generally meaning that the property settlement reverts to the settlor when the child reaches majority. In those circumstances, a cohabitation agreement may be of assistance so that compensation awards are clearly defined.

There is obviously a careful balance between protecting the client in receipt of a compensation settlement and achieving fairness for any future spouse who may argue for a share of such settlement to provide accommodation for themselves or any children of the family.

Ovu v London Underground Ltd

In the case of Ovu v London Underground Ltd [Ovu v London Underground Ltd (duty of care) [2021] EWHC 2733 (QB) (13 October 2021) (bailii.org)], the Court considered whether Mr Ovu had been a trespasser at the time of his death and whether the London Underground owed him a duty of care.

Facts

Mr Ovu tragically died on 22 January 2017 after falling from a staircase at Canning Town Tube Station, London. Mr Ovu, who was intoxicated, walked through two sets of clearly marked emergency barriers and entered a non-public area of the station.

One of the emergency barriers that he passed through was linked to a silent alarm. The only member of staff working that night was therefore alerted that someone had used the exit barrier. The staff member went to the barrier and closed the gate without checking whether there was anyone beyond the gates. This prevented Mr Ovu from using that exit. There was only one other exit, which was an emergency door that opened onto the street.

Mr Ovu is seen on CCTV walking towards the other emergency doors, but appeared to be unaware that he could open them and so did not attempt to do so. He went back to the emergency barrier he had passed through but was unable to use that exit. Mr Ovu later fell from the stairs and suffered fatal head injuries. The staircase was found to be adequately lit and in reasonable condition.

Mr Ovu’s family brought an action following his death. The following issues needed to be considered:

  1. Was Mr Ovu a trespasser at the time of his death;
  2. Was a duty of care owed; and
  3. If so, the extent of that duty of care.

Was Mr Ovu a trespasser at the time of his death?

It was the family’s case that Mr Ovu had not chosen to leave the premises and his behaviour in trying to re-enter the platform showed an intention to resume his journey towards home. However, the closed gates had prevented him from giving effect to his intention to resume his journey and cease to be a trespasser.

The family relied on the case of Spearman v Royal United Bath Hospitals NHS Trust [2017]. In this case the claimant was being treated at the defendant’s hospital. As a result of either the effects of a brain injury or a hypoglycaemic attack the claimant climbed several flights of stairs and used an internal fire escape to get onto a flat roof, where he overcame a 1.4 metre barrier and thereafter either jumped or fell to the courtyard below sustaining serious injury.

In Spearman Mr Justice Martin Spencer stated that “… whether a person is or is not a trespasser is not solely to be determined by whether the place where they are is or is not an “authorised” place. A person’s state of mind and intention is an important additional factor”. He decided that as the claimant had problems with his mental health, it was foreseeable that he may enter an area not normally entered by patients and that he had had entered the off-limits area as a genuine mistake.

In Mr Ovu’s case, Master McCloud found that the main differences were a) he entered the off-limits area having passed very well signposted limits, and b) that having at that stage become a trespasser merely changing his mind and wishing to re-enter the platform is, not comparable to the case of a person who is unaware they have or are about to exceed their licence or unaware that they will be entering a dangerous area.

Master McCloud therefore held that Mr Ovu was a trespasser at the time of his death.

Was a duty of care owed?

As Mr Ovu had been found to be a trespasser at the time of his death, the duty to non-visitors under the Occupier’s Liability Act 1984 applied. Further, having considered Clerk and Lindsell (the leading textbook on tort law), Master McCloud found that there is nothing to prevent in an appropriate case some duty of care at common law being owed in parallel with the duties to trespassers under the 1984 Act.

However, in this case Mr Ovu slipped and fell on a standard staircase which had no particular defects or unusual dangers of condition. It was much like any other staircase on the Underground whether in public or non-public areas. The harm which befell Mr Ovu was a blow to the head occasioned by the fall, and the risk which he encountered was the ordinary risk of using a staircase, a risk obvious to any adult especially after a few drinks.

Master McCloud found that there was no duty under the 1984 Act as the staircase had no particular defects and the stairs were not dangerous due to their state. She found that there were “no measures that the Defendant could sensibly be expected to have taken which would prevent a fall on an ordinary staircase in good condition, given the obviousness of the risk of a fall on any stairs and the enormous implications if it were to be necessary to – somehow – intervene to protect transport users from that normal everyday risk”.

The claim was therefore unsuccessful.

Early Settlement Offers – Can They Ever Be Advantageous?

One of my primary objectives when acting for clients is to ensure that they are compensated properly for the injuries they sustain.

For this reason, it is not ideal when insurers make very early offers of settlement, especially in cases of substantial value. If an offer is made before medical evidence is complete, a solicitor must advise a client on a “best guess” scenario – will the compensation that is offered be enough to compensate that client for any ongoing pain or lasting complications from their injuries, and will it cover all necessary treatment and care costs going forward?

However, in some limited circumstances, an early offer of settlement can be of benefit to a claimant.

My client Mrs M was a passenger in a car being driven by her husband on a country road. Another driver tried to overtake the car on approaching a hill. There was no clear line of vision. An oncoming horsebox came into sight and, to avoid colliding with the horsebox, the other vehicle drove into the side of Mrs M’s car. The force of the action sheared off the back wheel and axle and the car careered into the bank. Very sadly the other driver was killed in the collision.

My client who was 90 at the time suffered significant injuries including a fractured skull and spinal fractures throughout her upper and mid spine. She was in hospital for 3 weeks. She developed BVVP (a form of vertigo).

The insurers agreed to fund an Immediate Needs Assessment (INA) under the Rehabilitation Code 2015. This enabled me to instruct an independent case manager to visit my client and prepare a report making recommendations for rehabilitation to support my client in her recovery.

The INA report gave some costings for the initial recommended rehabilitation, (so for example it recommended initial assessments with a pain management specialist, neurologist, neuro-physiotherapist and psychologist). It also gave some recommendations for the initial care support my client would require in her recovery.

On disclosure of the report, the insurers made an early offer to settle the claim for £75,000.

An INA is designed to support a claimant in their recovery, not to enable the claim to be valued. The usual progression of a personal injury claim is that, when a client has made some recovery from their injuries (hopefully with some extensive rehabilitation funded by the insurers), they are seen by various independent medical experts who prepare reports which give an opinion and prognosis for the injuries sustained. Those reports enable a solicitor to value the claim.

At such an early stage in Mrs M’s claim, I was unable to advise her with any certainty that the offer would be enough to compensate her fully. We simply didn’t know how fully she would recover from her injuries and what investigations, treatment and support she may require long term.

However, Mrs M was 90 at the time of the accident, and sadly her husband had recently been diagnosed with terminal cancer. Whilst there was a risk that she would be undercompensated for her injuries by accepting this offer, given that it would bring her claim to a swift conclusion (and we had the INA for her to follow up with any recommendations made for her treatment using the compensation she received), she was keen to explore early settlement.

Following negotiations with the insurers, I was able to secure a six-figure settlement for my client which she was happy to accept.