Clinical Negligence, Soap Operas and Fixed Fees

I recently settled a Clinical Negligence case that had more twists and turns than an episode of Eastenders.

Carol (not her real name) went to her GP, on a Friday morning, complaining on a lump on her shoulder. In fact it was an abscess. Her doctor took a blood test which was sent to the local hospital. There was a major issue about whether the test was sent before or after lunch. This was significant as it impacted on whether the sample was tested on the Friday or the Monday. The sample was in fact tested on the Monday and confirmed MRSA. The result was emailed to the surgery on the Monday afternoon an apparently seen by a different GP. There was a delay in acting on the result and Carol developed a serious epidural abscess which caused long term problems.

The facts seem straightforward but the litigation turned out to be anything but straightforward. It soon became clear that the two GPs, who had different insurers, were blaming each other. The criticism of the first one was that he should have ensured that the sample reached the hospital on the Friday. The criticism of the second one was that he had delayed acting on the result. Then the two doctors blamed the hospital for delay in communicating the result to the surgery. So we soon had three defendants who were all robustly defending the claim.

Then came another twist. As the claim was heading for trial, there was joint meeting of microbiology experts. They threw a spanner in the works by raising a completely new issue. They agreed that Carol had been hugely overdosed on powerful antibiotics by a second hospital. She had been prescribed them for more than twice the recommended number of days. They also agreed that this overdose had contributed to her symptoms. So the whole claim had to repleaded at this stage adding to the costs. Further expert evidence was needed to unravel which of the symptoms were caused by the delay and which were caused by the overdose.

We now had four defendants in a matter as hotly contested as the Labour Leadership!

Eventually we all trekked down to London for a settlement meeting which finally resulted in a six figure settlement.

This was an interesting if difficult case. But it also demonstrates how unpredictable clinical negligence cases can be. At first blush it was a simple case of a delayed MRSA diagnosis causing a nasty injury. It was only as it developed, that the issues became more and more complicated.

All of which raises a question mark over the merits of fixed fees in these cases. The Government proposes the introduction of fixed fees in Clinical Negligence claims with damages up to £250k. The reasoning is that they are lower value claims and the costs are disproportionate.  Carol’s case would come within that figure and is a classic example of how costs can quickly build up due to unpredictable hazards. 

The Bar council made this very point in its response the consultation paper of fixed fees –

‘The value of damages recovered is a very poor predictor of the extent of the legal and expert input required to establish liability and ensure that such patients receive proper compensation for injuries. The introduction of a FRC scheme, which does not allow for the factors individual to each case, risks making this highly complex and specialised area of litigation financially unviable for solicitors, counsel and medical experts.’

http://www.barcouncil.org.uk/media/403497/bar_council_response_to_the_reducing_legal_costs_in_clinical_negligence_claims_pre-consultation_paper.pdf

Concerns were also voiced by senior costs Judge Master Cook earlier this year –

http://www.lawgazette.co.uk/news/judge-labels-clin-neg-fixed-costs-profoundly-worrying/5053833.fullarticle

He talked about conduct by the NHS which can cause costs to rise –

According to the Law society’s Gazette – ‘The judge pointed to a raft of behaviours by hospital trusts and the NHS’s litigation arm that drive up costs, including failure to disclose documents or respond properly to claimants, failure to admit liability early on, and ‘needless opposition’ to making payments on account of costs, or to embracing split trials.’

I am not against fixed fees in principle. They certainly reward speed and efficiency and have a place in straightforward cases. But a broad brush application to all cases depending on the value will have a significant impact on access to justice. A case like Carol’s which presents new issues by the day could lead to recoverable costs which will ultimately raise questions over the viability of taking on such cases.

It is expected that the recent political turmoil will delay any proposed ‘reforms’ until next year. I think that some form of fixed costs is inevitable but would hope that the limit will be a more manageable £25k or possible £50k and with some flexibility in those cases which turn into a soap opera through nobody’s fault.