piBlawg

the personal injury and clinical negligence blog

A collaboration between Rebmark Legal Solutions and 1 Chancery Lane

Cutting legal aid in clinical negligence cases will cost the taxpayer

The Legal Aid, Sentencing and Punishment of Offenders Bill returned today to the House of Lords for its second day in committee. On the previous occasion, peers, including our very own Lord Faulks, made clear their view that the Bill is unacceptable in its current form. One hopes that today their lordships considered those sections of the Bill aimed at removing legal aid for clinical negligence cases.    The Government is seeking to save £10.5 million by this proposal. However financial analysis carried out by Kings College London estimates that the knock-on costs to the Department of Health via the NHSLA would outweigh these predicted costs savings (see http://www.kcl.ac.uk/content/1/c6/08/81/08/UnintendedConsequencesFinalReport.pdf). The analysis identifies four sources of knock-on costs, namely: The ATE premium for expert fees and reports; The 10% increase in damages to fund ‘success fees’ under the Jackson reforms; Costs generated by claimants who “give up” seeking justice, for example increased welfare payments, medical treatment and lost output; and Costs defending spurious actions no longer weeded out by the legal aid screening process, which would not be recoverable under the proposed system of Qualified One-way Cost Shifting.   Based on the report’s estimates, the Bill would generate a net loss of approximately £18 million per annum. Though an estimate, this is currently the only figure available. In evidence to the Justice Select Committee, the Ministry of Justice admitted that it had not analysed the impact of the proposals on other Departments. We wait to hear if the economic case against cutting legal aid in this area has been made in the committee session today.  

"Of course I'm sure: I remember it like it was yesterday" - Vagaries of Recollection and the Problem with Witness Evidence

The scenario is common during any trial: two witnesses give evidence who were both present at a particular event but whose recollection about what was said or what they saw is so completely at odds one wonders whether they witnessed the same thing.  Whether it is a dispute between a claimant and a doctor about what was said during a consultation, the drivers of two cars that have collided about who was positioned where on the road or two parties to an oral contract who disagree about its terms, the difference in evidence is usually equally stark.   Often the judge will accept one of their versions of events completely and reject the other.  The oral evidence of the preferred witness may be repeated verbatim in the judgment, treated as though it is as accurate as CCTV footage or a secret recording of the event.   Ask yourself this question: on an ordinary day when nothing particularly good or bad has happened to make it remarkable, what do you remember of the details of the many small incidents that occurred?  What do you honestly remember of what you saw as you walked down the high street, who served you in the supermarket, whether anyone was mopping the floor in the veg aisle, where precisely you crossed the road, what was said by you or the salesman when you discussed your new kitchen, which gear you were in as you drove towards a particular set of traffic lights, or precisely what the doctor told you or you said to him during a GP visit that seemed routine at the time.  The honest answer is almost always somewhere between "nothing" and "not much".  We remember the general gist and some of the main points of any day or particular conversation, but often little of the detail.    The adversarial system is such that witnesses are encouraged to put forward a positive recollection about all the surrounding facts of the day in question and, if they are honest and say that they don't remember everything clearly, they are at risk of being found unreliable.  It is not good enough for a driver to say that if something untoward had occurred before a child ran out into her path she would have noticed it because she was paying attention.  It is not good enough for a doctor to say that of course the advice was given because it is what she always says when dealing with that particular problem.  Unless the witness professes to have an actual recollection of what they in fact saw or said, they are at risk of being found to be "an unreliable historian".  "Not remembering" whether any life guards were present around the swimming pool gradually becomes a positive recollection that no life guards were there at the time.  The favourite refrain of many a judge in road traffic cases is "well she was there to be seen: if you were paying attention you would have seen her".  Maybe, maybe not.  The brain might well process a child on the pavement, but unless she was doing something odd, why would that have stuck in the memory?  As I drive along my road I might register vaguely that there are people about on the pavement.  But unless they are doing something unusual, my attention will note nothing more than that.  Are not these witnesses in fact the truthful and reliable ones?     Take, for example, a case in which a claimant professes to have a clear recollection about whether any cleaning crews were present in a huge supermarket superstore.  Of course the clear recollection is that not a single cleaner was there to be seen.  Really?  Who can honestly say that they notice the workers, officials and cleaners present in any shop, transport hub or leisure premises when they are going about their business and focussing on their day.  Uniforms blend into the background.  But this evidence is often accepted as accurate.  I do not place the blame on the witness who clearly believe their recollection iss true.  My concern is about the judges who accept it as so.      In a different but related context the New Jersey Supreme Court in the US has recently raised concerns about the reliability of eye witness identifications and handed down new guidelines for testing them.  It is notable that the Court places at the centre of its analysis scientific research into the reliability of eye witness evidence.  In a unanimous opinion, the court said (http://www.judiciary.state.nj.us/opinions/supreme/A808StatevLarryHenderson.pdf): "We find that the scientific evidence considered at the remand hearing is reliable.  That evidence offers convincing proof that the current test for evaluating the trustworthiness of eyewitness identifications should be revised. Study after study revealed a troubling lack of reliability in eyewitness identifications. From social science research to the review of actual police lineups, from laboratory experiments to DNA exonerations, the record proves that the possibility of mistaken identification is real. Indeed, it is now widely known that eyewitness misidentification is the leading cause of wrongful convictions across the country. "We are convinced from the scientific evidence in the record that memory is malleable, and that an array of variables can affect and dilute memory and lead to misidentifications. Those factors include system variables like lineup procedures, which are within the control of the criminal justice system, and estimator variables like lighting conditions or the presence of a weapon, over which the legal system has no control."   If scientific studies show that basic eye witness recognition of the perpetrator of a crime has a high incidence of unreliability it is difficult to see why recollection of other small facts and details in less dramatic cases should be any better.  One cannot help but think that justice would be well served if more judges were prepared to recognise the reality of the vagaries of memory, rather than simply picking the witness they like best and accepting absolutely all they say as being completely accurate.  That said, as much of my job involves catching witnesses out on small slips so that I can call the totality of their evidence unreliable, I'm at risk of putting myself out of a job...

Clinical Negligence Claims against the NHS Up 30%

The NHSLA published its annual report on 4 August 2011. Last year: (a)    it faced 8,655 clinical negligence claims, an increase from 6,652 the year before (up about 30.11%); (b)   of those,  5,398 cases were settled with only about 4% being resolved by litigation; and (c)    it paid out £729,100,000 pursuant to these, which was an increase from £651,000,000 the year before;   The report welcomes the introduction of the reforms recommended by the Jackson Review and laments the increased costs they have been facing claimed by claimant solicitors. It states: “We paid over £257m in total legal costs, of which almost £200m (76% of the total costs expenditure) was paid to claimant lawyers... we paid over £257m in total legal costs, of which almost £200m (76% of the total costs expenditure) was paid to claimant lawyers.”   The Report raises many issues. Two of note would be: (a)    Why has there been this recorded increase in claims? Are doctors becoming more negligent, or is our culture simply becoming increasingly litigious and the legal markets have facilitated this? Has the Recession contributed to this? (b)   Whilst they will undoubtedly assist in maintaining proportionality between damages and costs, how will the Jackson Reforms (particularly the irrecovarability of CFA uplifts from unsuccessful defendants), affect access to justice?   The Report is available at: http://www.nhsla.com/NR/rdonlyres/3F5DFA84-2463-468B-890C-42C0FC16D4D6/0/NHSLAAnnualReportandAccounts2011.pdf    

Another reason to fear the dentist

Another example of a claimant in a clinical negligence case failing to prove causation (this time,  against a dentist who was alleged to have caused the onset of infective endocarditis). In what looks like an important judgment, the court found that the treatment was such as a reasonable body of dentists could have recommended, so that it satisfied the test in Bolam and was therefore non-negligent. It also tackled head-on the issue whether there was a link between the treatment and the onset of IE, and found that on the balance of probabilities there was no such link. Finally it found that in any event the prophylactic treatment that the claimant alleged should have been given, would not have made any difference. The case is Wragg v Burnham, decided by the DCJ in Birmingham on 10th June. Angus Piper appeared for the defendant.

Exaggerate and risk indemnity costs

In Desai vs North Essex Partnership NHS Foundation Trust [8MA25049; Judgment 19th April 2011, trial 14th February 2011; HHJ Knight QC; Central London County Court) the Court found that exaggeration of a claim could leave a claimant open to an award of indemnity costs against her. Mrs Desai had an incident at work on 28th December 2005 in an NHS psychiatric ward. More...

Scotland the Brave?

The Scottish government has announced (20 February 2011) that its plan to reform the system of NHS compensation claims in Scotland has been backed by a panel of independent experts.   http://www.scotland.gov.uk/News/Releases/2011/02/18132915   The No-Fault Compensation Review Group set up by the Health Secretary in 2009 and headed by Professor Sheila McLean, an expert in law and medical ethics, has now recommended changing the current adversarial court system to one of no-fault compensation.   The proposed new system would still require proof that harm was caused by treatment but would remove the need to prove negligence.   The review group suggests more patients could have claims resolved under such a system than currently achieve resolution through the courts. Interestingly the group also considers that the costs of the scheme would potentially be the same as the NHS currently pays in compensation and legal fees.   No-fault systems are already in place in Sweden, New Zealand, Finland, Denmark and Norway and parts of the United States but this is the first time that such a scheme has been proposed in the UK. Whether the scheme will in fact be implemented will depend on whether the Scottish Health Secretary, Nicola Sturgeon, can get the proposal through the Scottish Parliament. We will now have to wait and see, in the words of the famous Scottish song, how   “ … Brave are the hearts that beat Beneath Scottish skies…..”  

Dealing with the discount rate review

A settlement award of £7.85 million (capitalised current value) was recently agreed in the case of TBE v Royal Berkshire NHS Trust.  The award comprises a lump sum payment of £3,660,700 plus annual payments index linked to ASHE 6115 of £140,000 to age 19 and £225,000 from age 19 for life.    The case involved a 10 year-old claimant, TBE (name abbreviated to protect his and his family's privacy), who has severe cerebral palsy caused by medical negligence during his birth. The award of damages will be overseen by the Court of Protection and will be used to provide TBE with the 24 hour care, equipment, therapies and accommodation he will need for the rest of his life.    The order giving effect to the compromise of TBE’s claim included a mechanism for reassessing the multipliers used in calculating his claims for future losses at the conclusion of the review of the discount rate announced by the Lord Chancellor on 9 November 2010. The discount rate which was set at 2.5% by the Damages (Personal Injury) Order 2001 was based on yields generated by index-linked government stock (ILGS). However the rate has not been varied since 2001 and has become increasingly unrealistic in that a 2.5% per year real and net discount rate has not been achieved since the rate was first set.   Accordingly it was necessary for the parties to agree and for the order to include the matters which will in due course be reassessed. In particular, it was necessary to define (1) the “future life sum” (LS)  (2)  the full life multiplier (LM) representing a term certain from Table 28  (3) the “future earnings sum” (ES”) and (4) the earnings multiplier again representing a term certain from Table 28. The intention is that once the Lord Chancellor has concluded his review and determined any new discount rate, the new full life multiplier (“NLM”) and the new earnings multiplier (“NEM”) will be recalculated by reference to Table 28 using that new discount rate.   To arrive at the LS it is necessary to deduct (1) general damages and interest (2) past losses and interest (3) capital expenditure and other costs in the first year (4) CRU (5) any adaptation costs and other costs associated with the immediate purchase of a property.   The advantage to a Claimant of adjourning the issue of the discount rate is that as a result of the review the rate may be decreased resulting in a higher multiplier for future loss. However, careful consideration needs to be given as to whether this is appropriate. For example, the multiplicand under the principles in Roberts -v- Johnstone is also calculated by reference to the discount rate. It follows that a reduction in the discount rate, whilst increasing the multiplier, will decrease the multiplicand to which that multiplier is applied.  There is also the risk that the discount rate may be increased rather than decreased. In the present economic climate this seems unlikely. However, the economy, both in this country and abroad, may look very different in say 18 months or 2 years. Clients will therefore need to be given careful financial advice before agreeing the final form of order and legal advisers would be well advised to record both what that advice is and the fact that it has been given.       

Should sperm donors be entitled to claim joint residency?

On 15 November 2010, the Court of Appeal adjudicated a custody battle over two children conceived by artificial insemination by a lesbian couple using donated sperm (the case of T v T). In this unusual case, the sperm donor had parental responsibility for the children and applied for further access. In June 2010, a Court at first instance granted the father joint residency, which allowed him equal access to the children, involving 152 night stays. The couple applied for a primary residency order on the basis that the original order "marginalised" the mother's partner’s rights. In its judgment dated 1st December 2010 ([2010] EWCA Civ 1366) the Court of Appeal refused to overturn the joint residency order on the basis that it was appropriate to include the father in the order in the event that the mother died.   

Quality Care Commission Survey of Maternity Services

Maternity services are improving, however there is still more to be done with regards postnatal care, according to a survey by the Quality Care Commission. In December the Quality Care Commission released the results of its latest survey. More than half of all women in England who gave birth in February 2010 responded to the survey, of which 25,000 received maternity services from the 144 NHS Trusts in England. The results show that women are generally positive about the services they receive, with 92% rating their care during pregnancy as good or better. However there remain several areas of concern, primarily in terms of postnatal care. In particular, no improvements were made in the length of time women waited for stitches for an episiotomy (cut) or tear. The survey has broken down results by NHS Trust. In London four of the 22 hospital trusts were rated better than the national average. The breakdown for each care provider can be found at http://caredirectory.cqc.org.uk/caredirectory/searchthecaredirectory.cfm.