Industry Update September 2024
Lower Damages Clinical Negligence Fixed Recoverable Costs.
So the key question is, will the new Labour Government adopt the much delayed reforms and finally introduce a Fixed Recoverable Costs scheme for claims worth between £1,501 and £25,000?
The Civil Procedure Rules Committee informed us that there was still a lot of work to be done before the Rules were ready and we know as at the June 2024 meeting, that this work had still not been completed. The next CPRC meeting is scheduled for the 8th November 2024, so we should know in December if the reforms are going ahead and if they will be ready for a April 2025.
I have always been of the view that a new scheme would be introduced and Lord Dazi’s independent investigation into the NHS and the Government’s response to his report, have only reinforced this view.
Lord Darzi’s Independent Investigation into the NHS
Lord Darzi’s report into the NHS was published in September 2024 and it did not hold back on its assessment of the NHS. The report revealed a stark picture of a service which Lord Darzi said was in a “critical condition” and “serious trouble”.
The report when on to make several recommendations aimed at addressing the rising costs and inefficiencies related to clinical negligence within the NHS, the key ones of which were:
- Improved Patient Safety and Preventative Measures:
The need to improve patient safety to reduce the number of incidents that lead to negligence claims. This includes better training, more robust safety protocols, and enhanced systems for reporting and learning from errors.
- Expanding the Early Notification Scheme:
Expand the Early Notification Scheme, particularly for birth injuries, to ensure quicker investigations and settlements, reducing the need for lengthy litigation.
- Alternative Dispute Resolution (ADR):
Lord Darzi recommended increasing the use of mediation and other forms of ADR to settle Clinical Negligence claims outside of court.
- Fixed Recoverable Costs (FRC) for Clinical Negligence Claims:
Lord Darzi supported the introduction of Fixed Recoverable Costs for lower-value claims.
- Investing in NHS Infrastructure and Staff:
To reduce the likelihood of negligence, Darzi called for more investment in NHS infrastructure, particularly in hospitals and primary care, to improve service delivery. He also highlighted the importance of supporting healthcare professionals to prevent burnout and ensure high standards of care
Of all of the recommendations, the focus on improving patient safety to reduce the number and cost of clinical negligence, was very welcome. Perhaps we may at last be seeing a renewed focus on prevention being cheaper than cure.
Are we about to see a new dawn in the use of Mediations and other forms of ADR in Clinical Negligence ?
In Churchill v Merthyr Tydfil, the Court of Appeal held that the courts have the power to order parties to engage in mediation or another form of ADR, as well as having the power to stay proceedings to facilitate ADR between the parties.
Following this decision, the CPRC launched a consultation in April 2024, which closed at the end of May and it is widely expected that we will see new Rules and changes to the Pre-Action Protocols, that will compel parties in Clinical Negligence cases to actively explore, if not participate in, Mediation and other forms of ADR.
With the ever increasing delays being encountered with the Courts, a wider adoption of Mediation/ADR must be a welcomed development for all concerned.
Recent Case Law
In Biggadike v El Farra & Anor [2024] EWHC 1688 (KB) HHJ Carmel Wall (sitting as a High Court Judge) found that annotations made to medical records were not, in fact, contemporaneous. This case highlighted the importance of checking medical records very carefully, especially as in the case here when two sets of records were disclosed, with the second containing annotations. HHJ Carmel Wall said “The transparency of record-keeping is self-evidently important whether medical or legal issues are in contemplation. Anyone coming to hand-written clinical records would reasonably expect them to be original source material, contemporaneously recorded, unless the contrary was clearly identified.”
In Deakin-Stephenson v Behar & Anor [2024] EWHC 2338 (KB) Dexter Dias KC (sitting as a Deputy High Court Judge) the issue of witness evidence was considered in relation to a clinical negligence claim. Beside finding that there was “story-creep” and that the evidence produced to support the claimant was not an accurate recollection, the Claimants case was very much hindered by the glowing 5 star review that she had made of the treatment provided by the Defendant, which she had posted on line just one month after the surgery in question.
For anyone wanting to stay up to date with relevant Case Law, then you can do no better than subscribing to the excellent Civil Litigation blog of Gordon Exall
Author: Ian Cohen, Commercial Development Consultant for Kain Knight
