Marketform Medical Malpractice Claims Seminar Proactive Claims Risk Management in Action

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1 September 2013 (ISSUE 3) Marketform Medical Malpractice Claims Seminar Proactive Claims Risk Management in Action Mirror Mirror on the Wall should I be having this surgery at all? Avoiding the pitfalls in treating a patient with a psychiatric disorder Key steps to Successful Management of Small Claims How you can help minimise the damages (and costs) payments on lower value claims. Scottish Law Reform Gathers Pace A round up of changes affecting Scottish litigation - will other jurisdictions be affected? General Medical Council Investigations an overview What to do if the GMC comes knocking Post Jackson Costs Landscape Judges flex their Case Management muscles Northern Ireland: good, better and best Practice, Procedure and Public Enquiries How to be a Recording Artist What it takes to ensure your medical records are up to scratch

2 Marketform Medical Malpractice Claims Seminar Thank you to everyone who attended our seminar on the 19th June 2013 helping to make it a success. It was wonderful to see so many friendly faces and the team thoroughly enjoyed catching up with our brokers, Assureds and lawyers, some from overseas. Proactive Claims Risk Management At a Medical Malpractice event hosted by Lloyd's insurer Marketform on 19th June 2013 at the London Underwriting Centre, 100 delegates heard about proactive claims risk management techniques from leading legal and medical experts. The presentations were very interesting and educational; I hope that I speak on behalf of all delegates when I say everyone learnt something. Both key note presenters were excellent and we are grateful to Nick Percival, consultant plastic surgeon and Matthew McGrath, Partner DAC Beachcroft for sharing their knowledge and experience with us. BELOW ARE SOME OF THE FEEDBACK COMMENTS WE HAVE RECEIVED: I just wanted to drop you a line to tell how much I enjoyed today's seminar. I wanted to say how enjoyable the seminar was at the LUC, probably one of the most interesting I have been to in recent months. Thank you for inviting me. Thank you for organising the seminar yesterday, and thank you to the presenters, it was very interesting. Just a note to say thank you for yesterday - it was very informative. THE HIGHLIGHTS INCLUDED: Nick Percival, Consultant Plastic Surgeon, commented: "Cosmetic surgery in the UK continues to grow despite the recent economic downturn. Unfortunately there is also a growth in patient dissatisfaction and medicolegal claims for cosmetic surgery are also rising. To avoid joining the queue of patients resorting to the law, patients should satisfy themselves that their cosmetic surgeon is fully trained and is on the GMC specialist register." Matthew McGrath, Partner, DAC Beachcroft LLP, observed: "Having good systems in place for storing all treatment records greatly enhances the ability to successfully defend cases. I have, unfortunately, dealt with too many cases over the last 20 years where the failure to locate part or all of the treatment records has meant claims have had to be settled." Niala Butt, Medical Malpractice Claims Manager, Marketform Managing Agency, who outlined the steps that can be taken in an increasingly litigious climate to reduce the prospect of receiving a claim and to improve the chances of a successful defence. Marketform Managing Agency Medical Malpractice claims team from left to right: Sarah Wallis, Solicitor, Senior Medical Malpractice claims assessor, Sherry Dalesandro, Barrister, Senior Medical Malpractice claims assessor, Niala Butt, Medical Malpractice Claims Manager and Lance Thorpe, Medical Malpractice claims Assessor. Alex Wakeley, Class Underwriter Medical Malpractice, Marketform Managing Agency, said: "Reduce the costs of claims with proper risk management procedures, and help us to increase the defensibility of a claim by collecting and preserving all relevant evidence. If you reduce your claims cost, then this will assist us to reduce premiums. Good records equals good defence, no records equals no defence." 2 3

3 The Event in Pictures: Neil Rowe & Malcolm Goodwin Julie Charlton & Alexandra Mintz Ann O Driscoll & Keeley Patten Stephen Maratos Leigh-Anne Divison & Mike Weal Matthew McGrath Lance Thorpe & Phil Tuckwood Martin Fairclough & Curtis Tulloch Emma Upson and Tony Elrod Naomi Discala & Nicola Swann Alex Wakeley Nick Percival 4 5 Joanne Easterbrook Malcolm Goodwin, Niala Butt & Gary Knight

4 Mirror Mirror on the Wall, should I be having this surgery at all? As everyone is aware, it is particularly important to ensure that the patient has realistic expectations on the outcome of their cosmetic surgery, but how can this ever be achieved if those expectations are never capable of being realised? Around 2% of the population suffer from Body Dysmorphic Disorder (BDD). The disorder can range in severity but it is generally characterised by the sufferer being overly obsessive about their appearance, and in particular one aspect of their appearance which to others may seem trivial or non-existent. Body Dysmorphic Disorder is a significant mental disorder which causes great distress to sufferers. However, it also creates particular problems for cosmetic surgery practitioners with a higher risk of claims and potentially large awards of damages if an existing condition is exacerbated by the very surgery that was undertaken to make the patient feel better about themselves. Marie Shoulder Bevan Brittan LLP Chartered Legal Executive A recent study by the Institute of Education at the University of London commissioned by the Department of Health revealed that those who have underlying psychological issues such as depression and BDD are more likely to have cosmetic surgery. The caution lies however in the fact that a psychological condition can actually worsen rather than improve following cosmetic surgery. In a case with a patient who has BDD for example they can undergo several cosmetic surgery procedures whilst becoming increasingly unhappy with their appearance, which can often result in depression, agoraphobia and social isolation. This impact could add thousands to the potential value of any damages claim, certainly if a loss of earnings claim were to be advanced along with a claim for treatment such as Cognitive Behavioural Therapy. The current JC Guidelines value general damages for psychiatric and psychological damage up to 82,750 at the top end of the bracket where the impact of the disorder can affect the injured person's ability to cope with life and work and on the injured person's relationships with family, friends and those with whom he or she comes into contact and the prospects for recovery are poor. So, how well do practitioners know their patients? In most cases, patients undergoing cosmetic surgery do so without referral from their GP. It is therefore extremely important that a thorough discussion takes place to identify the reasons why a patient is seeking to undergo surgery. If there is any suspicion that a practitioner is dealing with an at-risk patient, they must question whether the treatment is appropriate at all. A patient with BDD is unlikely to accept they have a mental disorder at all because to them their cosmetic flaws are very real so obtaining informed consent is fraught with difficulty. The IHAS "Good Medical Practice in Cosmetic Surgery" Guidelines state that the patient must be asked to give consent to inform their GP of any planned surgery. A GP may be able to provide important information about the patient and so if the patient refuses to give consent to contact their GP this should instantly raise suspicion. So, if a practitioner decides to proceed, the patient must be made aware of the implications of not informing his/her GP and should be asked to sign a disclaimer to that effect. It is an unnecessary risk to provide invasive cosmetic surgery without information about the patient s medical history and every effort should be made to obtain confirmation from their GP that there is no known medical reason not to operate. Although not mandatory, there are psychological screening processes available which are designed to provide a more thorough investigation into the patients reasoning for wanting cosmetic surgery. These screening processes can offer a strong indication of whether or not surgery is the appropriate choice for a patient before they go ahead. The consultation that a patient has with his/her surgeon is a very important part of the cosmetic surgery process and should never be underestimated. 6 7

5 Stephen Maratos DAC Beachcroft LLP Solicitor Key steps to Successful Management of Small Claims Small claims, with relatively low damages figures claimed, can sometimes present the most problems; in terms of strategy, management and publicity. Costs can rapidly be the key driver towards settlement even if claims could be defended, meaning that there is a great deal of frustration for Insureds who can end up paying out their excess on matters they consider to be frivolous. Here are a few hints and tips to try to stay on top of smaller claims:- 1. NOTIFY CLAIMS TO MARKETFORM PROMPTLY AND KEEP THEM UPDATED This can help ensure that the parties use the Pre-Action Protocol, which is designed to try to narrow the gap between the parties and can lead to more earlier settlements (with costs therefore being kept lower). Many claims still enter litigation, but Marketform or panel solicitors can help ensure that Claimants solicitors are pushed towards the Protocol, and can take points on costs if Claimants unreasonably refuse. Throughout claims keep your broker or Marketform's Claims team updated to ensure compliance with policy wording. 2. INVESTIGATE EARLY AND COMPREHENSIVELY Claims are often presented a few years after the incident, meaning that staff members may have moved on or have forgotten many of the key details. Ensure that staff information, such as GMC/NMC registration numbers, are retained for all staff and that they are contacted for comments promptly. Consider other staff members that can comment, for example on the "true extent" of injury and impact on the Claimant's life, even if they were not involved in the treatment in question they may have provided follow up care or on slightly different issues. Ensure that there are systems in place to record and retain comments following adverse events. 3. LIAISE WITH CO-DEFENDANTS Where claims will rest with an Independent Contractor, or another insurer, then raise this with them immediately; ask Consultants to contact their Medical Defence Organisations and forward them a copy of the Claimant's solicitors letters. Other insurers may be reluctant to take over the case before completing their own investigations but if an indemnity or apportionment offer is made to them early on then it can help persuade them to do so sooner rather than later. 4. CONSIDER TREATMENT OPTIONS Some Claimants or their solicitors will want to complete treatments before considering settlement; this can lead to legal costs increasing during the period of delay. Offering reduced price treatment (without admissions of liability, and as a gesture of goodwill, of course!) can help progress matters to settlement sooner. The costs of offering the treatment can be lower than the figures that would be claimed within special damages, if the treatment has been obtained elsewhere. Treatment may only amount to a few therapy sessions, but that can help accelerate the final prognosis. 5. MAKE EARLY (AND REALISTIC) PART 36 OFFERS Part 36 offers are offers that can lead to limits being applied to the legal costs that a party can recover; they therefore help persuade a party to settle. For the defendant a Part 36 offer should be realistic, rather than speculative. Claimants may be reluctant to negotiate but a Part 36 offer forces them to complete investigations, and shifts some of the risk on costs onto the Claimants. Early on in claims it can be hard to be certain on damages figures, but estimates can be made based on experience and similar previous claims. 6. OFFER MEDIATION The success rates from mediation are high and there can be costs consequences for the Claimants if mediation is unreasonably refused. The Courts have been unsympathetic to perceived excuses about cases not being fully prepared, and this may help force Claimant's solicitors to progress their investigations and bring them to the negotiating table. 7. DON'T BE TOO GREEDY Lots of claims fail to settle quickly because parties will "draw a line in the sand" and refuse to accept/pay any less/more. Unless a Part 36 offer has been made and the case is one that will be taken all the way to trial then it is important to consider the merits in small increases in offers to settle claims. Legal costs will continue to escalate during any prolonged negotiations and a small saving could ultimately be a pyrrhic victory. It is also worth remembering that going to trial will have other costs, such as lost clinics/business whilst witnesses attend court for 2/3 days. 8. MAINTAIN GOOD WORKING RELATIONS Many cases that settle the quickest are those run by Claimant's solicitors who are willing to take steps to advance their client's interests; others that delay and build costs, and over-aggressive solicitors, tend to achieve the poorest outcomes for the Claimants. Whilst they can be the hardest ones to deal with a good working relationship with them can help resolve cases. Conclusions Pro-activity in terms of both investigations and offers can reap dividends helping to minimise payments made and resolve cases with minimal stress! 8 9

6 Adrian Dagnall Bevan Brittan LLP Partner How to be a recording artist Robust record keeping is vital to patient safety, quality of care and the demands of clinical governance. Inadequate medical records mean that some litigation claims cannot be properly defended and need to be settled out of court. Inadequate medical record keeping is a regular part of many fitness to practice cases heard by the GMC, and is often highlighted as a criticism in inquiries and inquests. BUT WHY KEEP RECORDS AT ALL? Some of the main purposes of good record keeping are: Patient care - Comprehensive informative health records facilitate continuity and quality of care, and an understanding of the clinical history of a patient. Complaints, inquiries and litigation The medical notes are one of the key means by which a healthcare professional is judged. Good notes will protect and assist the medical team, demonstrate appropriate risk assessment, and give them credibility in the event of criticism. If there is a dispute about events then courts often adopt the line that: 'if it's not recorded, it didn t happen!' Audit The clinical and cost effectiveness of care can be assessed by auditing the outcome of the care. Research national data sets and morbidity registers. Good records can often head off a complaint or claim before it gets started. For example: Detailed records confirming the contraindications and risks of a procedure were explained to a patient before it was undertaken can deter a lawyer from taking on a Claimant's consent-based claim. Pre-printed information sheets setting out the pros and cons of proposed treatments can be a useful way of providing background information, but they are not a complete substitute for having (and recording) a focused discussion with the patient. Notes confirming the results of patch tests, energy levels used and the duration of the treatment can prevent IPL claims from being pursued. Good photographs (pre and post treatment and at reviews) can help to establish how bad (or not!) a patient's reaction to a treatment has actually been. Copy records retained by the treating practitioner in addition to the clinic's notes will help to protect that practitioner if, for example the clinic goes bust and its notes are lost/destroyed. So what do good clinical records look like? All patient clinical contact and key interactions should be recorded in black permanent ink legibly, simply and accurately. Every entry should be dated, timed and legibly signed with your name and position. In larger organisations, a stamp can be helpful to ensure that the name and position of the clinicians is clearly recorded. Notes should be informative, complete and up to date. Record clinical history, normal and abnormal findings, discussions, investigations, results, drugs prescribed, decisions made, care plan, referrals, special or risk factors. Do not record things that you did not do. If a mistake is made or notes need to be altered it should be crossed through with a single line. The date and name of the person who has amended the notes should then be recorded. Remember that computer records will have an audit trail that will enable alterations to be identified. The patient and any other parties at a meeting should be clearly identified together with a precise note of the date and time. Notes should be in chronological order and ideally should be contemporaneous. Contemporaneous notes are given more weight than those made subsequently. Nicknames should not be used. Abbreviations should not be used unless widely accepted. No jargon, offensive or gratuitous comments should be made (the records may be scrutinised by a Judge in court!). Records should be stored confidentially. Take care when entering notes on a computer that the information is going on to the correct patient s medical records. Adhering to these guidelines puts you in a good position to be able to respond to a complaint or claim with hard evidence and maximises the prospects of a successful repudiation, saving you both time and money

7 Scottish law reform gathers pace Elena Fry Brodies LLP Partner Many of you will be aware that there will be a referendum on Scottish Independence in September The result of the referendum and its impact for Scotland and the rest of the UK will play out in due course. In the meantime, however, it is worth remembering that Scotland has its own judicial system and the Scottish Government is already responsible for the administration of justice in that jurisdiction. This has led to divergence in the law relating to claims and litigation north and south of the border. For example, in recent years, the Scottish Government has passed legislation dealing with entitlement to damages and the calculation of damages by the Scottish Courts (e.g. the Damages (Asbestos-related conditions) (Scotland) Act 2009 and the Damages (Scotland) Act 2011). There are clear signs that change will continue regardless of the independence debate. So, for those with a particular interest in Scottish claims and litigation (and for anyone else who wants to keep an eye on what is happening in case it affects their jurisdiction), here is a note of recent changes you should be aware of and a hint at what might be lurking round the corner. RECENT DEVELOPMENTS - SCOTTISH BEREAVEMENT AWARDS In Scottish fatal claims, relatives of the deceased are entitled to claim damages for the distress caused to them by their relative s premature death. This right has existed for many years and was coloquially known as a loss of society award. However, the right was updated by Section 4 of the Damages (Scotland) Act 2011 and applies to deaths after 7th July The relatives entitled to claim damages include a spouse (or civil partner), children, siblings, parents, grandparents and grandchildren of the deceased. Each relative s award is made in addition to any general and/or special damages and significantly increases the cost of Scottish fatal claims. The level of damages awarded varies depending on the nature and circumstances of each case. However, a run of Court decisions during 2012 and 2013 has increased the damages awarded to relatives. The Scottish Judiciary recognised that Scottish juries - yes, we still have jury trials in Scotland for civil cases - were awarding higher damages than single judges and decided that there needed to be a significant increase in the awards of damages made to relatives. The Scottish Civil Appeal Court in the case of Hamilton v. Ferguson Transport (Speanbridge) Limited 2012 SLT 715 gave a landmark judgement. The Court held that Scottish judges had previously markedly undervalued relatives claims. Since that decision, awards have increased to almost double their typical pre-hamilton value. In McGee & Others v. RJK Building Services Limited [2013 CSOH 10], the widow of the deceased was awarded 80,000, adult children were awarded 27,500 and 35,000 respectively and grandchildren were awarded between 12,000 and 25,000 each. The total amount awarded to relatives was 246,500 exclusive of interest. By way of contrast, shortly after Hamilton, a jury in the case of Kelly v UCS (unreported, 29th June 2012) awarded the widow 40,000, adult children 25,000 each, a brother 8,000 and grandchildren between 1,500 and 8,000. The deceased in that case was 82 years old when he died and that might explain the jury s reasoning. Valuations from Claimants now routinely place significant sums against the relatives individual claims and Claimant solicitors are now providing more detailed evidence to demonstrate the close nature of family relationships. It only takes a relatively limited number of relatives to have total bereavement awards totalling more than 200,000, with interest accruing until the case is settled. As a result, proactive management of fatal claims is essential. CHANGE AHEAD - SCOTTISH COURT REFORM Similar to the Woolf reforms in England and Wales, the Gill Report proposed radical changes to bring much needed reform to the Scottish court system. In response to the report, the Scottish Government issued a consultation paper in February 2013 inviting responses to Lord Gill s recommendations. The consultation period is now closed and whilst we don t have a timetable for change, it is anticipated that reform will come soon. One recommendation that will affect the management of litigated clinical negligence cases is the establishment of a new specialist personal injury court, leaving the Court of Session (Scottish High Court) free to deal with high value cases (over 150,000). Structural reorganisation of the existing court system is taking place and some provincial courts are being closed to lay the groundwork for more sweeping changes. There is still some debate to be had about whether or not it is appropriate for clinical negligence cases to be moved away from the Court of Session. For example, in May 2013 there was a shift towards active case management of clinical negligence cases in the Court of Session by the introduction of a new court rule. It can be argued that clinical negligence cases are too complex to be lumped in with standard liability claims in a specialist injury court. Brodies replied to the Government consultation and we await further developments. ROUND THE CORNER? - SCOTTISH NO FAULT COMPENSATION SCHEME FOR CLINICAL NEGLIGENCE ACTIONS The Scottish Government issued a consultation last year to discuss recommendations for No Fault Compensation in Scotland for injuries resulting from clinical treatment. A No Fault Compensation Review Group was established by the Scottish Government in The consultation period is now closed and responses were published on the Scottish Government s website in February Most respondents were against a No Fault Scheme. All has been quiet since then, but at First Minister s questions in March 2013, Scottish First Minister Alex Salmond hinted at the Government s intention to push on with a No Fault Scheme. Initially, the Scheme was the Scottish Government s favoured way forward for the NHS in Scotland. However, the consultation suggested that the Scheme might go wider than the NHS and should be extended to all registered health care professionals in Scotland. Reference was made to a similar scheme operating in Sweden. Clearly there will be further discussions and the detail of any Scheme has not yet been touched upon by the Government. Nevertheless, if it was to go ahead we would potentially have a two tier compensation system operating in the UK and further divergence of court and compensation processes in Scotland. Clearly Westminster will be watching and the impact of any proposed revisals to the Scottish system should not be ignored by those in the rest of the UK. So, whether or not Scotland votes for independence, the Scottish Government is likely to continue its efforts to revamp the Scottish judicial system. Those with an interest, take note

8 General Medical Council Investigations an overview In recent years there has been an upward trend in low. This category includes complaints made by appears comparatively minor. The GMC will take an Committee who will decide whether it is necessary to complaints about doctors to the GMC. Increased patients who consider the treatment they have interest in any case which affects the reputation of issue a warning, or if the allegations are serious to media interest and an increased willingness by received has been substandard, although many the profession, and this can include matters as trivial refer the matter to a Fitness to Practice hearing. Ben Lambert Bevan Brittan LLP Associate patients to complain has led to a 23% increase in complaints to the General Medical Council in 2011 alone. Plastic and cosmetic surgery in particular has been the focus of media attention and doctors in this area of practice are likely to find complaints to the GMC coming under increased scrutiny. Set against that background what sort of complaints does the GMC consider and how does it set about complaints come from fellow doctors and employers. Generally speaking, complaints regarding a doctor s performance which relate to a single incident of negligent treatment will not usually be considered sufficient to comprise deficient performance unless that incident is very serious. ADVERSE PHYSICAL OR MENTAL HEALTH as minor incidents involving criminal damage, public disorder offences, or any offence which involves alcohol or drugs. Similarly, doctors who are the subject of a determination by another regulatory body either in the British Isles or abroad may also attract the interest of the GMC. THE INVESTIGATORY PROCESS If you are unlucky enough to be the subject of a GMC If the case is referred to a Fitness to Practice hearing, a panel will consider the allegations in a three stage process involving a consideration of whether the factual allegations are proved, and if so, whether they would amount to a doctor s fitness to practice being impaired. If the panel conclude that a doctor s fitness to practice is impaired the panel will then go on to consider whether it is necessary to impose a sanction. investigating them? The GMC has a duty to protect patients and to act in complaint, the GMC s investigation will follow a set Witnesses can give evidence at this hearing and the The General Medical Council derives its authority, including the power to regulate the profession, from the Medical Act Until recently the GMC was responsible for investigating, prosecuting and adjudicating complaints. From June 2012, a separate body, which is part of the General Medical Council, the Medical Practitioners Tribunal Service, has been responsible for adjudicating complaints about doctors. There are four main categories of cases considered by the GMC. CASES INVOLVING MISCONDUCT The courts have been reluctant to define what is considered to be misconduct. It has been described as conduct which would be regarded as deplorable by fellow practitioners and covers a broad range of potential complaints including doctors who engage in inappropriate relationships with patients, falsifying medical records, or allegations of fraudulent or dishonest conduct. DEFICIENT PERFORMANCE Deficient performance should not be confused with negligent treatment, which is a concept used by the courts in civil proceedings. Deficient professional performance can be equated with standards of professional performance which are unacceptably the public interest and will investigate where a doctor is suffering from a health condition which impairs their fitness to practice. This may include conditions which are continuing or episodic or a condition which is currently in remission but which might be expected to recur. An investigation will usually take the form of a health assessment by two independent medical practitioners who will consider whether the doctor is fit to practice. Such cases do not often lead to a full hearing, but are usually dealt with through conditions on the doctor's registration and continued monitoring of a doctor s health by a medical assessor appointed by the GMC. CRIMINAL CONVICTIONS IN THE BRITISH ISLES OR A DETERMINATION BY A REGULATORY BODY, EITHER IN THE BRITISH ISLES OR OVERSEAS The general principle is that if a practitioner is the subject of a criminal conviction or receives a caution or a determination by any other regulatory body in the UK they will have their case considered at a Fitness to Practice hearing. The GMC may also take action if a determination is made by an overseas regulatory body. It is important for doctors to take advice from their insurer or their defence union before accepting a caution, even if the offence course. Complaints which are older than five years will usually only be investigated in exceptional circumstances. The first formal stage of the process will involve the GMC sending a Rule 4 letter requesting the doctor s comments on a complaint within 28 days. It is not compulsory to provide comments at this stage, but if the complaint is minor and vexatious it can be helpful to do so. The matter will then be considered by a case examiner who may or may not be medically qualified, who will decide whether the matter should proceed to the next stage. If the matter proceeds, the doctor will be sent what is called a Rule 7 letter asking for his further comments within 28 days. Again, it is not compulsory to provide comments at this stage, although in all but the most serious cases, it is usually advisable to do so. The case will then be considered by two case examiners who can decide either to close the complaint by taking no further action, to offer the doctor the option of accepting a warning, which will remain on the Medical Register for five years, to offer the doctor the possibility of accepting undertakings restricting his registration, or the matter can be referred for a full hearing. In certain circumstances, including if a doctor is not prepared to accept a warning, the matter can be transferred to an Investigation doctor is usually represented by a barrister. The range of options which are available to a panel, should they decide that a doctor s fitness to practice is impaired is to decide either to take no action, to impose a range of potential conditions restricting a doctor s registration, to suspend the doctor for up to 12 months, or in the most serious cases to erase the doctor from the Medical Register. If the panel decides that the facts proven do not amount to impairment of a doctor's fitness to practice they can also decide to issue a warning. WHAT SHOULD YOU DO IF YOU RECEIVE A LETTER FROM THE GMC? If a doctor receives a letter from the GMC they should not ignore it! It is surprising how many doctors delay seeking advice following receipt of a letter from the GMC. Early action is essential, and most insurers require prompt notification of a GMC complaint if they are to provide assistance. It should be remembered that the majority of complaints to the GMC are concluded with no further action being taken, and obtaining advice from their insurer or defence union at an early stage often ensures for the doctor that a careful and considered response can be prepared and the complaint concluded at an early stage

9 Post Jackson Costs Landscape Gary Knight Harmans Costs Lawyer The new legal landscape has now been traversed for the best part of 6 months so what has changed? On the face of it not too much; the simple reason being the majority of the changes introduced were not retrospective and it is the cases issued post April 2013 and work undertaken post April 2013 that will be scrutinised in the coming months. Solicitors, Barristers and Costs Lawyers alike await early guidance with regard to, for example, how the Costs Judges will apply the new rules relating to Proportionality. We are attempting to get to grips with the fact that costs which are disproportionate in amount may be disallowed or reduced even if they were reasonably or necessarily incurred *. But just how will the Costs Judges, as suggested in the Jackson report and subsequently, undertake a detailed assessment over a number of days, allowing only items considered reasonable and proportionate to the issues involved and amounts claimed stand back at the end of the assessment to consider the total allowed and then if the figure still appears disproportionate, make a further reduction? Should the Costs Judge simply allow a total figure he finds acceptable? Should a percentage reduction be applied? Should the damages (if any) be taken into account i.e. costs not more than the damages recovered or damages plus 20%? Costs Judges have confessed to not knowing the answer and unavoidable satellite litigation looms. Budgets have been embraced by both sides though not it must be said warmly; teething problems still need to be addressed particularly in respect of the available on line budgets which to date have failed to carry out correctly the necessary calculations...still early days and certainly the judiciary appears to have taken to budgeting. However it is case management which has really been adopted with great relish by the Courts if early cases are any thing to go by. Amendments to budgets are not being entertained unless there is very (very) good reason; cases are being struck out for non compliance with time tables set out in the Civil Procedure Rules and Judges are being advised that strong case management decisions will be supported by the Court of Appeal. There is perhaps no better example of the tough new approach than the recent matter involving Andrew Mitchell MP who sued the Sun for damages arising out of the so called plebgate incident. Mr M s solicitors failed to provide a costs budget 7 days before the first case management conference as required, the sitting judge using his powers to impose sanction limited the Claimant s costs to applicable court fees. The application for relief was dismissed by Master McCloud stating there is no evidence before me of particular prejudice to Mr Mitchell arising from my order: it would be for him to demonstrate that it would be wrong of me to make assumptions about the wording of his CFA agreement with his solicitors which may or may not mean that my sanction affects him financially or in terms of legal representation, the judge went on Even if it did effect him financially and as to representation, there are many claimants who manage without lawyers and it could not be said that he would be denied access to a court more than is the case for others if they have to represent themselves. It remains to be seen if the new aggressive application of the Rules and Directions that accompany the rules will continue, or if we will see a return to a more flexible approach to non-compliance. However, the message to the profession from the Courts is clear - fail to follow orders, directions and rules at your peril; if you do fail, check your professional indemnity insurance is up-to-date and provides sufficient coverage! *CPR 44.3 (2) (a) 16 17

10 Kevin McWilliams McKinty and Wright Solicitors Partner Timothy Cockram McKinty and Wright Solicitors Solicitor Joyce McKane McKinty and Wright Solicitors Solicitor Northern Ireland: good, better and best GOOD: EFFICIENT LITIGATION IN THE COUNTY COURT In Northern Ireland the County Court is generally the faster and, with statutory scale costs, less costly option for litigation, but because prior to February this year the jurisdictional limit was 15,000 it was rarely the forum for resolution of clinical negligence cases. The table below shows the number of Civil Bills issued in the County Court and Writs issued in the High Court in respect of clinical negligence claims for the period 2010 to The number of claims pursued in the County Court has been paltry when compared to the High Court. Year Civil Bills (County Court) Writs (High Court) Total On 25th February the long awaited changes to the County Court Jurisdiction took effect. From this date claims with a value of up to 30,000 are now within the County Court s jurisdiction and statutory scale Costs apply. Overall there should be a significant reduction in costs for claims in the 15,000 to 30,000 range. Other changes to procedure within the County Court should lead to a more streamlined system and claims with a value of up to 30,000 will now come on for trial significantly more quickly than previously. There are now in place two Pre-Action Protocols, one for personal injury actions generally and one for clinical negligence cases, specifically in anticipation of an increase in these cases in the County Court. The Protocols are seen as best practice only; they are not mandatory and do not mirror the England & Wales Protocols. Claimants solicitors should provide more detail pre-proceedings if they want the benefit of the Protocols. Experience tells us that an increase in jurisdiction usually leads to a gradual increase in damages awarded as cases start to come before the Court. It therefore remains to be seen whether the recent changes will have a significant impact on the number of clinical negligence claims that are pursued through the County Court. BETTER: GREATER OPENNESS AND EFFECTIVE CASE MANAGEMENT The Northern Ireland High Court Protocol for clinical negligence litigation sets out objectives of early communication between parties, the development of early reporting and investigation by health care providers and disclosure of information and records to allow where appropriate pre-litigation resolution of disputes. The increase in the NI County Court jurisdiction has led to this Protocol being extended to County Court cases. This Protocol is non-binding and has no penalty in terms of costs but it forms the basis of ongoing practice. Medical notes & records should be provided to a patient within 40 days of the request. If a decision is taken to proceed with a claim then the Letter of Claim should be detailed setting out full allegations, identifying all defendants and providing an assessment of all elements of damages claimed. The health care provider or their representative has 4 months to respond in detail to the allegations. This Protocol is just part of a series of changes which have brought greater openness and judicial case management to clinical negligence actions. Until relatively recently clinical negligence cases were exempt from Order 25 which provides that medical reports must be served with the Statement of Claim. This has been amended to provide for the simultaneous exchange of expert medical evidence on liability issues. Reports dealing with condition and prognosis are exchanged sequentially with the Plaintiff having 10 weeks from close of pleadings to serve any such evidence while the Defendant has up to 20 weeks. The rationale for sequential exchange is to ensure the parties deal with quantum in a focused manner. Greater judicial case management has led to timetabling of key steps such as the meetings of expert witnesses in advance of trial with set agendas and Scott schedules, the prompt disclosure of documents and fixing cases for hearing at an earlier stage. From a defence perspective the healthcare providers and practitioners with reputations at stake can have the case dealt with more quickly. Insurers can tailor reserves more accurately because of early disclosure of quantum and liability evidence. BEST: STANDARDS OF CLINICAL GOVERNANCE The ongoing Hyponatraemia Inquiry is the current focus of the medical profession and clinical negligence practitioners in Northern Ireland. This Public Inquiry is examining the events surrounding the deaths of four children from hyponatraemia in hospital between 1995 and The Inquiry has examined the management of fluid balance in relation to each of the tragic deaths but it has also within its remit the more general governance issues of identifying and investigating adverse incidents, reporting of deaths and the dissemination of learning. The Inquiry was triggered by a TV documentary entitled When Hospitals Kill broadcast in A chilling title, but one which now 10 years later resonates with the findings of recent reports into NHS failings in England. In contrast to the background of these reports the Hyponatraemia Inquiry has not resulted from failing hospitals. Rather it relates to one specific issue of treatment and the developing awareness of the risks associated with hypotonic fluids. What it has in common with them is the apparent failure of the system to account properly for the deaths and take steps to learn from them. This has been a theme running through the Inquiry with governance issues addressed in relation to each of the deaths. At the time these deaths occurred clinical governance was a new concept, just being established within hospitals, and the Inquiry has heard that it has developed significantly since then and in relation to unexpected deaths has moved from an in-hospital, unit based audit to a wider and more robust reporting system which can identify patterns and then act. It has heard that there is a changed culture which is quicker to identify medical errors. The next stage of the Inquiry in the autumn will examine and assess these improvements. We have been involved in the Inquiry on behalf of several doctors giving evidence and it is clear that the investigation has been thorough. It is expected that the recommendations of the Inquiry will have a profound influence on the management of risk in hospitals and clinics. This is to be welcomed not only in relation to patient care but also from the point of view of health institutions as improved care management systems will provide better security and protection for all providers and staff

11 MARKETFORM TEAM David Cameron Head of Claims Niala Butt Medical Malpractice Claims Manager Sarah Wallis Senior Medical Malpractice Claims Assessor LEGAL PANEL HELPLINE DAC Beachcroft Ian Cooper Corinne Slingo Bevan Brittan COSTS PANEL HELP SERVICE Harmans Goodwin Malatesta Sherry Dalesandro Senior Medical Malpractice Claims Assessor All articles represent the opinions of their authors and are not endorsed by Marketform. The contents are for general information. They are not intended as professional advice for that you should consult a solicitor, barrister, or other suitably qualified professional. Marketform expressly disclaims all liability for any loss or damage arising from reliance upon any information in this newsletter MKF-MedMal September (9/2013)

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