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July 18th 2017

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We should never forget the human cost behind a medical negligence claim and the focus must be on improving the process for them

Dr Neil Hudgell

Dr Neil Hudgell

Managing Director

We should never forget the human cost behind a medical negligence claim and the focus must be on improving the process for them

Figures and statistics rarely tell the full story, and when it comes to reports around the costs of legal claims made against the NHS due to medical negligence, that is certainly the case.

Figures and statistics rarely tell the full story, and when it comes to reports around the costs of legal claims made against the NHS due to medical negligence, that is certainly the case.

The annual report of NHS Resolution (NHSR) – the new name for the NHS Litigation Authority – has again focussed around a rise in legal costs in cases over the past year to just under £500m.

Its report places a heavy focus on the legal costs attributed to claimant lawyers such as ourselves at Hudgell Solicitors, with little reflection on the human cost of repeated, major medical errors made across the NHS.

It also omits reference to the fact that every profession has to carry indemnity insurance and medicine is no different – the prospect of no reserve to meet liabilities would be the more frightening picture, adding insult to injury

Costs are always a good distraction from the major issue at hand here, the failing of patients and a continued culture of denial when NHS Trusts are faced with litigation.

Let’s be clear, costs can only ever be recovered by lawyers acting on behalf of patients when a medical body or organisation has been found or accepted that negligence has caused injuries or harm.

Costs in cases also include fees for reports from experts and barristers if the case is set to proceed to court, and the final fees recovered by lawyers have to be agreed between parties or assessed and approved by a judge.

So, hardly the scandal often presented in the media, but an agreed legal process to ensure patients harmed by negligence have strong legal representation to help them fight for the damages they deserve.

Rising damages payments to patients emphasises need to reduce errors across NHS

Whilst focussing on the costs total, the NHSR has failed to properly reflect on the significance of the near £1.1bn secured in damages to clinical claimants through claims, which again, are payments only made in accepted or proven cases of medical negligence.

This surely reflects on an unacceptable picture of avoidable health care errors being made, errors which are often life-changing, or even fatal.

Our medical negligence specialists at Hudgell Solicitors support many people who have life-long rehabilitation and care needs following medical negligence errors on a day to day basis, and providing that life-time care for such people will contribute significantly to that £1.1bn overall damages figure.

These people have often had no answers from the health bodies involved as to what went wrong and why, and it is only through the support, skills and expertise of our legal experts that they are able to hold people to account.

Highly complicated cases, such as injuries at birth, naturally take many years to conclude because the child needs to be old enough to be assessed.

These cases account for many of the most expensive claims, as they involve babies left brain damaged at birth, where payouts involve the cost of care for life.

Yet even in cases such as this, legal costs are being focussed upon and suggestions are being made to ‘fast track’ cases, simply to cut costs.

We certainly support any moves which can speed up the legal process, but certainly never at the expense of proper compensation and the correct long-term support being provided.

The focus here again is being placed on the wrong area – the human cost is the issue at hand, and will only be worsened with less legal influence, as vital knowledge and experience from people truly working in the best interests of the client would be lost.

Devastated mum only discovered errors had cost her baby boy his life after legal support

The cost of medical negligence can never be more than when it leads to the loss of life, and in most such cases legal action is focussed on getting answers and ensuring vital lessons are learned

Mother Gaynor McConnell suffered the heartache of losing her baby boy Cayden to meningitis when he was just one-year-old.

She feared something had been missed by doctors, as Cayden having overcome a bout of meningitis at four months, was constantly ill afterwards, but she was always assured all was fine.

Only through legal investigations, which saw independent medical experts consulted, did the Hospital Trust involved admit Cayden could have been saved with different treatment.

This was because an MRI scan taken at four months showed an open passage (tract) running from the base of Cayden’s spine to the area of a lump on his back, something which should have led doctors to investigate and discover that Cayden had a dermoid tumour which needed removing.

Had that tumour been completely or even partially removed, the recurrence of the meningitis which killed Cayden seven months later would have been unlikely.

Never in this case has compensation been the focus.

Ms McConnell has now dedicated her time to raising awareness and warning other parents to always demand more tests and answers when they have worries.

Hopefully, crucial lessons have also been learned by medical staff not only at that Hospital Trust, but also at others, as following the claim the care provided was fully scrutinised and investigated as it should be, rather than being brushed under the carpet.

Failure to admit errors continues to be a major issue impacting on fees

The NHSR report has tried to distance health bodies from dragging out the legal process, but it is our continued experience that they too often deny responsibility until faced with the ultimate threat of court action.

They force lawyers down the route of gathering independent medical expert reports, putting insurance cover in place for the client’s costs over the claim, and instructing barristers for potential court hearings.

We recently settled a case involving a young man who suffered a testicular torsion (a highly painful cord twist which cuts off blood supply), as the hospital failed to provide him with urgent surgical treatment, causing him to lose his testicle.

Despite an apology from the Trust involved, and a letter stating “we will not contest the legal case”, the claim was denied.

This caused us to have to obtain independent medical evidence, from which a urologist confirmed surgery had not been performed as urgently as it should have been, and that the longer the delay the less viable the testicle was going to be.

Compensation was finally agreed, after we had issued court proceedings, three-and-a-half years after the Trust had first written to our client to apologise and state it would not contest legal proceedings.

If a reasonable damages offer had been forthcoming at the initial stage, our costs would have been minimal. Instead the claim went on for three years and six months.

In the end, the total costs in this case, including court fees, medical reports, insurance and barristers fees will be some six or seven times higher than they could have been.

Add to this the costs to the NHS of their own legal representation – which totalled £126m in 2016/17 – and it is easy to see why this figure has also been rising.

Mediation needed at the start to bring down costs and improve patient care

The NHSR report says “Getting the lawyers on both sides engaged in mediation has been challenging but the panel has already been active in building interest with some encouraging early signs.”

We find mediation simply does not happen however until later in the court process, following the issuing of legal proceedings.

In one relatively low value case in which our client suffered delayed diagnosis of a lumbar vertebrae fracture due to an inadequate assessment when he initially attended at hospital, liability was denied by the NHSLA despite us having supportive independent medical opinion.

Despite attempts on our part to settle the claim at £3,000 and then at £1,500, the defendant refused and we eventually issued court proceedings but suggested mediation as a possible means of resolving matters.

The NHSLA agreed to this and mediation was conducted by telephone, resulting in the claim being settled for £1,250 plus our costs.

However, our initial offer of £3,000 damages had been made in December 2015, and then we made a second offer of £1,500 in August 2016. The mediation took place in February 2017 and a settlement was reached.

Therefore, the saving to the NHS in terms of damages awarded was £1,750 from our original offer, and as little as £250 from our second offer, savings which were significantly overshadowed by the additional costs and disbursements that we incurred after our offers were made.

Such increased legal fees like this can be easily avoided with proactive involvement from the defendants early on.

More often than not our clients want someone to speak to and want someone to understand what has happened to them. Therefore, the cost of mediation at an early stage would likely make the client feel listened to, and vindicated to some extent.

It would also likely lead to a speedier resolution, lower costs all round, and quicker access to treatment for the people at the centre of all of this – those left with injuries due to errors being made and are too often discussed as figures, rather than people with a genuine need of expert support and care.

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