Marketform. Welcome to the first edition of our newsletter. medical malpractice claims expertise. Consent Claims

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1 January 2013 (ISSUE 1) Welcome to the first edition of our newsletter. Following our very successful broker seminar in summer of last year, we are introducing this newsletter as a sign of our commitment to provide our customers and the market with up to date knowledge and information. Over the coming year we will bring you key case law summaries, updates on topical items, trends, commentary, best practice tips and more. Consent Claims Sorry, they re here to stay. Keogh Review of Cosmetic Surgery Underway The NHS Medical Director has been asked by the Department of Health to investigate both issues of clinical safety and regulation. Simmons v. Castle 10% uplift begins in April Costs Landscape The best way for the losing party to reduce costs is an early admission of liability if appropriate with, where possible, an offer to settle. Prevent Infection Litigation Keep your infection controls noticeable. Are You Ready for Costs Budgeting? Lord Justice Jackson s Review of Civil Litigation Costs are coming in April.

2 An Exciting 2013 Consent Claims The Last Resort For The Hopeless? Niala Butt Marketform Claims Manager 2013 is going to be an exciting year, the litigation landscape is changing, and this will bring new challenges. The Discount Rate consultation period has ended, the decision in Simmons V Castle was revised by the most senior judges of the Court of Appeal and the Legal Aid, Sentencing and Punishment of Offenders (LASPO) Act 2012 which contains the salient Jackson proposals comes into force in April Also, the Health and Social Care Act abolishing Primary Care Trusts and Strategic Health Authorities came into force at the end of 2012 but to mention a few. Claims alleging that informed consent was not given by a patient continue to grow in number, particularly when the Claimant will struggle to show that whatever harm they sustained was the result of negligence rather than bad luck. If a Claimant can show that, if properly warned about a risk, he/she would never have had the treatment, even bad luck can result in compensation. Unfortunately, due to inadequate/incomplete consenting documentation kept by the clinic/practitioner this often comes down to the word of the treating practitioner against the Claimant. Courts often seem to side with the Claimant in these situations, thinking that the Claimant has good reason to recall what was said because it was probably one of the few times they will have gone through the consent process, whereas the practitioner probably does it several times a day and cannot be expected to remember any one occasion accurately. Adrian Dagnall Bevan Brittan This issue features a concise summary of the case of Simmons, interesting pieces on infection control, the forthcoming Keogh Review and a consent study along with a very helpful introduction to costs and forthcoming costs budgeting in practice. If you have any comments or if there is anything you would like to see covered in future please do let us know. All that remains is for me to wish you a happy and prosperous A recent case has reinforced this approach. In the snappily-titled case of C v M the widow of an 82-year old man argued that her husband had not been warned about the very rare but potentially devastating risk of stroke/neurological damage when administering nerve root injections for back pain at a private clinic. The consent form instead mentioned bleeding/bruising/worsening of pain. After treatment, the man suffered damage to his cervical spinal cord and died within eight days. Amongst other arguments, his widow criticised the consent form and doctor for not setting out the risks fully enough, in particular the risk of serious neurological damage. Despite the fact that the patient was no longer alive to say one way or the other, she also asserted that if he had been aware of those risks (rare though they were), he would not have had the injection. Given that he had died eight days after treatment, it is difficult to see how a court could ever have been confident of that. Despite the problems with the case, the widow recovered compensation of almost 100,000, arguably for a case of nothing more blameworthy than bad luck. When that is possible, we can confidently say that consent claims are here to stay. 1

3 Simmons-v-Castle (No. 2), a Practical Walk Through As everyone is aware the Jackson reforms on legal costs are to be implemented in April In the run up to this date, typically there has been a proliferation of cases squeezing advantages out of the current costs regime dominated by ATE insurance premiums and success fees. Among these cases has been this one. David Weatherburn DAC Beachcroft On 26 th July the Court of Appeal determined that ALL claims for personal injury settled AFTER April 2013 would have to include an uplift of general damages of 10%. This provision of Jackson was one of the measures designed to soften the impact to claimant lawyers of losing success fees and having to rely instead on top-slicing damages for their costs uplift. The logic of this appeared flawed as it meant that in a large tranche of cases defendants, and their insurers, would pay ATE premiums, success fees on the current model AND the 10% uplift the triple whammy. The Case DAC Beachcroft were instructed by the ABI to intervene and on the 10 th October, after a re-hearing, the Court of Appeal modified its judgement accepting the substantive parts of the ABI submissions. The Lord Chief Justice accepted that the Court had erred in its original judgement and that the ABI were right to intervene. The net effects of the judgement as it now is, are: 1. CFA funded claimants with agreements in place prior to April 2013 are NOT entitled to the general damages uplift of 10%. 2. The scope of general damages affected by the uplift have been reduced, probably most importantly in day to day cases, awards for vulnerability on the labour market are excluded. 3. Conventionally funded claimants e.g. litigants in person, children and vulnerable adults with LSC funding etc WILL though still get the 10% uplift in cases settled after April Practical steps It is even more crucial now to establish the means of funding of claims made, now and post April This impacts on costs and damages reserving AND the need to revisit the adequacy of any offers made to non-cfa claimants. It is estimated that 90% of claims in England and Wales that the market has to settle are funded by CFA so the decision represents both a positive clarification, and a welcome reduction in the pace of damages and cost inflation on relevant policy years and re-enforces the intention of Jackson to level the playing field between claimants and defendants. 2 3

4 Reducing the Risk of (being sued for) Infection Being sued is not a happy experience at the best of times but being sued for infection is often particularly galling. A doctor can see cosmetically pleasing handiwork be ruined by wound infection and scarring. It s frustrating, disappointing and possibly financially damaging. Most commonly, claims allege a failure in diagnosis/treatment of an infection or that it was acquired through the practitioner s negligence. The cases can be expensive. Recently: A patient sued for 700,000 after an infection he alleged was acquired negligently spread and he developed septic arthritis in both knees. A patient who developed a wound infection after a bilateral breast augmentation, which needed three revision operations is due to receive 30,000 in compensation, even though she has gone on to make a full recovery. Sian Morgan Bevan Brittan LLP Associate So how do you limit the chances of being sued? The answer lies in both taking the right preventative measures and being seen to do so. Good infection control practices are of course paramount. Make sure that you and your team always practice perfect hand hygiene. Having established your good infection control practices, document them. Depending on the size of your practice/clinic, carry out regular audits and document those too. Ensure that patients are warned of the risk of infection where appropriate. Allegations of failure to properly consent are commonplace in infection litigation. Equally important, however, is being seen to take the issue seriously. If you have been obviously fussy about hygiene, it is less likely that a claim will be brought against you if an infection develops. Make it obvious that you are being thorough about hand hygiene before examinations; remind patients and their visitors to do so too. Importantly, make sure that the treatment rooms you use look clean and tidy and are regularly cleaned. Many an infection claim has its roots in a shabby or dirty looking patient environment, even if there can be no actual connection to the infection acquired. Finally, don t panic! Report any complaints made by patients to your brokers. Being able to set out your stall on infection prevention at an early stage may well see off a claim before it starts. 4 5

5 Keogh Review of Cosmetic Surgery Underway 2013 Costs Landscape Claire Bentley Bevan Brittan LLP Associate (Professional Support Lawyer) In a wide-ranging review of cosmetic surgery, Professor Sir Bruce Keogh (the NHS Medical Director) has been asked by the Department of Health to investigate both issues of clinical safety and regulation within the industry as a whole. The move comes as a result of concerns expressed by the Minister for Health, fuelled by concerns from the general public and recent scandals such as the Poly Implant Prothese (PIP) silicone breast implants scare. Professor Sir Bruce Keogh is supported by a broadbased expert panel including doctors, academics, broadcasters and even the editor of Marie-Claire magazine. In England and Wales the losing party pays the reasonable costs of the winning party. Costs are made up of Profit Costs fees incurred by the Solicitors calculated on an hourly rate and Disbursements e.g. Counsel s fees, Court Fees, Experts fees, travel etc. The winning party has to pay his solicitors costs and then recovers this from the losing party. The amount due is determined by negotiation or a court process called Detailed Assessment. Dependent upon the wording of the original contract, there may be a shortfall between the costs due and those negotiated, the winning party may have to pay the difference to his solicitors. There are two bases of assessing costs; the standard basis which is usually used or the indemnity basis which applies where a party has behaved in an unreasonable manner before or during the proceedings or failed to better an offer made. Costs are recoverable under the terms of settlement which usually provides for reasonable costs to be assessed if not agreed. If costs cannot be agreed by negotiation, cost only proceedings can be issued. Gary Knight Costs Lawyer Harmans It is expected that the Review will report in March 2013 and will cover: the regulation and safety of products used in cosmetic interventions; how to ensure that practitioners have the necessary skills and qualifications; systems for looking after patients both during and after treatment; how to ensure that patients have the necessary information, advice and time for reflection to make an informed choice; and improvements to the complaints system. Costs schedules presented by the winning party may include additional liabilities in the form of Success Fees and After the Event (ATE) Premiums. A Success Fee is a reward to the Solicitor or Counsel for acting under a Conditional Fee Agreement (CFA) or commonly known as no win no fee agreements. They charge a percentage uplift on their hourly rate depending on how much the risk of losing the case was. ATE insurance is, insurance obtained after the event to protect a party in respect of costs that may be payable to the opponent and the party s own disbursements. A party is entitled to obtain ATE from day one and no argument as to obtaining insurance prematurely will succeed. From April these items will no longer be recoverable against the losing party where CFAs are entered in to on or after 1 April CFAs entered in on or before 30 March 2013 will continue to have success fees/premiums included and recoverable against the losing party. The best way to reduce costs is an early admission of liability if appropriate with, where possible, an offer to settle (PART 36). The Review continues to seek views and experiences from organisations and individuals alike, but its remit is huge; distilling those views and experiences and creating a coherent and manageable regulative framework will be no small task. The real trick for Professor Sir Keogh will be to make changes that will lead to a safer industry without miring it in red tape. Delay in responding to Letters of Claim and robust Letters of Response will increase the costs. Many cases will be resolved by commercial settlement and, whilst it is important to protect a Client from frivolous claims, how the matter is conducted at the outset will dictate the approach that will be adopted by an opponent throughout and conduct, as stated earlier, this will be considered when the issue of costs is decided. Things will change post April 2013 but that is for another day. 6 7

6 Are You Ready for Costs Budgeting? Malcolm Goodwin FCL Costs Lawyer Goodwin Malatesta Legal Costs Services Ltd In April next year many of the reforms proposed in Lord Justice Jackson s Review of Civil Litigation Costs are due to be introduced. Much attention has been given to the removal of losing parties being ordered to pay opponents success fees under conditional fee agreements and afterthe-event insurance premiums in cases issued after 1 April However the greatest impact for many parties in civil litigation is likely to be felt by the introduction of costs budgeting in the vast majority of multi-track civil actions. The new costs budgeting rules, will require all parties (except litigants-in-person) to file and serve costs budgets within 28 days of service of their defence. A costs budget will set out the amount of costs incurred to date and provide estimates of costs and disbursements to take the case to trial. The parties will be asked to agree budgets, but if that cannot be achieved the court will hold a costs management conference at which it will be expected to make a costs management order and approve a reasonable and proportionate costs budget for each party. Unless the court directs otherwise the filing of costs budgets will be mandatory and the rules specify that a party who fails to file a costs budget will be treated as having filed a budget for court fees alone and will be limited to recovering that amount. We will have to wait to see what success these new costs budgeting rules have controlling the cost of civil litigation; however we have already witnessed how the failure to comply with existing pilot scheme rules and practice directions can result in substantial financial loses to successful parties. In one case, still subject to an appeal, the successful party stands to lose costs of approximately 300,000 because of an inadequate budget! It is difficult to predict what the future holds, but we will surely see successful parties asking courts to depart from approved budgets because they are too low. We will also have to wait to see how costs budgets will be applied in cases settled before trial or how costs incurred before a budget was approved (costs budgets will not be retrospective) are to be assessed. We have interesting times ahead as we grapple with costs budgeting! At the conclusion of an action the successful party s recoverable legal costs will almost certainly be limited to the amount of the approved budget, regardless of how much the legal spend may exceed that figure. There is provision within the draft rules for a successful party to ask the court to allow costs in excess of the budget, however the court will only depart from the approved costs budget if there is good reason to do so, which is expected to be extremely rare. For example, it will not be considered a good reason to depart from the costs budget simply because a successful party s initial budget is too low or they have failed to monitor and revise that budget. That party will still be restricted on costs assessment to no more than the amount set out in the approved budget. The courts will be allowed to exclude cases from the costs budgeting regime if it is considered appropriate, but that is highly unlikely to happen. 8 9

7 Marketform Team David Cameron Head of Claims Niala Butt Claims Manager Sarah Wallis Senior Claims Assessor Legal Panel Helpline DAC Beachcroft Ian Cooper Corinne Slingo Bevan Brittan Costs Panel Help Service Harmans Goodwin Malatesta Corinne Kouassi Claims Assessor Lance Thorpe 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 January (1/2013)