MedCo and Deafness Claims - blessing in disguise?

I have ranted on numerous occasions here about the influence that the insurance industry has on the government. This regularly came up during the so called reforms of 2013 that devastated the rights of victims of accidents –

http://thestevecornforthblog.blogspot.co.uk/2013/03/apils-judicial-review-morning-after.html

In particular I referred to a ‘summit meeting’ which had taken place to which those representing victims had not been invited. Over the following two years, insurers seem to have become more and more confident that this government will do whatever they ask.

This is highlighted by a report in yesterday’s Litigation Futures concerning plans to extend MedCo. The report quotes the Deputy Director for Civil Justice at the MOJ as saying that the insurance industry is very concerned about Noise Induced Hearing Loss claims. He seems to say it as if that is now the starting point for further ‘reform’. Of course insurers are concerned. Claims cost them money. Of course they want to reduce the number of claims. They want to save money. But what has this got to do with the MOJ? Is there now only one side of any argument?

It seems to be taken as read that victims are a ‘problem’ and have to be brought under control.

http://www.litigationfutures.com/news/hearing-loss-claims-could-be-brought-into-medco-regime-moj-official-suggests

But what about the actual proposal?

For those who don’t know – MedCo is the system whereby victims of soft tissue injuries in motor accidents are assessed by a medical expert selected by the claimant’s representative from an approved list. So the idea would be to introduce a similar system for the assessment of whether a worker’s hearing loss is caused by noise. Far be it from me to support such a thought. But I wonder whether it is such a bad idea.

It is well known that there are some medical experts who are very popular with insurance companies in hearing loss cases. This is because they are instinctively hostile to the very idea that noise at work can damage hearing, and if it does any damage it must be minimal. So if we have a panel from which I can select an expert, then presumably I can decline to select such experts – even if they find their way onto the approved list. So in the longer term we could see the end to disproportionate arguments on causation, which experience tells me are the source of the vast majority of the cost incurred on noise induced hearing loss cases.

Or am I being naïve? What if the list is entirely made up of experts who will routinely exclude noise at work as a cause of the hearing loss? I can certainly see some interesting judicial review actions if that were the case.

I predict interesting times ahead. It is clear that the insurance industry sees victims of hearing loss as its next target, and that a compliant government will do what it can to assist.

But it might also be the case that they will need to be careful what they wish for.

Concerning three worrying cases of fake litigation

I send an annual email to all lawyers in my firm. It goes out just as we begin the process of renewing our Professional Indemnity Insurance. The wording has barely changed in over 20 years – it started life as a paper memo! This is the familiar email that invites them to report to me any circumstances that might give rise to a claim. It always has the same ending –

‘It is not the end of the world if you make a mistake. But it is a different matter altogether if you don’t tell me!’

I have always encouraged lawyers to speak to me or somebody senior if they are worrying about a file. I do it myself. It is all part of learning to work as a busy lawyer and also to sleep at night. All of which makes some recent stories both alarming and sad. These involve solicitors who have gone to staggering lengths to try and avoid being found out.

The first concerns Claire Tunstall who was suspended by the SDT earlier this year for fabricating documents in a clinical negligence case. This included medical reports, correspondence and counsel’s advice. She also made a payment to a client from her firm’s office account, pretending that it had come from the other side. The SDT found that she had suffered from a lack of support and supervision from her employers. She seems to have become ill as a result –

http://www.solicitorstribunal.org.uk/Content/documents/11289.2014.Tunstall.pdf

It is hard to imagine how someone can get into this position. The stress of maintaining such a fiction is far worse than the stress of getting it off your chest by admitting you have lost control of a case. I actually have great sympathy for her and would like to seen action against her firm who allowed this to happen.

But the plight of Ms Tunstall is overshadowed by two more recent incidents. The first is the case of Mark Davies who conducted fictitious cases for about five years. He fabricated documents, misled clients and even made payments to clients from his own money. Not surprisingly he was struck off last month. Again the question has to be … why? At what point did it become preferable to embark on a pretence that ended his career, rather than seek help.

http://www.legalfutures.co.uk/latest-news/solicitor-who-paid-clients-compensation-from-his-own-bank-account-is-struck-off

These have now been followed by third solicitor who has been referred to the SDT.

http://www.legalfutures.co.uk/latest-news/solicitor-who-conducted-fictitious-litigation-set-to-face-disciplinary-tribunal

One such incident would be unfortunate. To have three in the space of a few months is worrying. Why is it that lawyers are so afraid of admitting that something has gone wrong, that they will go to such drastic extremes? What has happened to our profession that nobody can put a foot wrong and if they do they risk their careers and health to pretend that all is well?

I think that we all have a role to play here.

Those of us in senior positions must make it clear that we are here to help and guide and not to judge or criticise. A difficult case never seems to be as bad once it has been shared with someone who isn’t worried about it!

I have no doubt that most of us do this. 

But something is going wrong and we need to do all we can to ensure that careers are not ruined through fear and panic.

Las Vegas and a (compensation) culture shock!

The blog has been quiet for a few weeks because I have been trekking around South West USA on a fact finding mission – OK holiday!

The fascinating trip raised a number of interesting issues surrounding the impact of culture. On the day we arrived in Las Vegas we read the tragic news of yet another college shooting. This time it was Roseburg high School in Oregon that was mourning the loss of students killed by Chris Harper Mercer who went on to kill himself. This has again raised the familiar calls for gun controls, which are likely to fall on stony ground –

http://www.theguardian.com/us-news/2015/oct/09/oregon-college-shooting-barack-obama-visit

As we were reading this news we were given a welcome to Las Vegas magazine which had a number of terrifying adverts, which actively promoted gun violence for entertainment.

There is more to these shootings than just gun control. It is this culture of gun use for fun which is most disturbing.

Another notable feature of Las Vegas is the number of Lawyer Billboards which line the freeways. They were only outnumbered by the adverts for Casinos. I have never seen so many smiling lawyers with teeth so white that they put Donny and Marie to shame (if interested you catch them at the Flamingo!). Most of them referred to damages claims and many were accompanied by dollar signs. In a city which we associate with the losing and making of money this was quite alarming. The message was that if you have been injured you can make big bucks especially if you instruct Mr Smiley-Face. The emphasis was certainly on the cash benefits.

It felt like a ‘compensation culture’. 

This has been emphasised further by the case of Jennifer Connell who has unsuccessfully sued her 12 year old nephew for injuring her during an overly enthusiastic hug. 

Thankfully, a jury took less than half an hour to throw out the claim –

http://www.washingtonpost.com/news/morning-mix/wp/2015/10/13/aunt-sues-12-year-old-nephew-who-broke-her-wrist-with-a-careless-hug/

But how did that case ever get as far as a trial? What lawyer was willing to take the case on, presumably on a contingent basis?

It is a world very different from our own. 

This puts into context the unfortunate rhetoric in the country from insurers, the media and politicians about the need to crack down on the 'compensation culture' over here.

The next time I hear this nonsense I will think of billboards with $ signs and aunties suing for damages for excessive affection.

That is a compensation culture.

We are a long long way from any similar sort of culture.

We need to be aware of this next time we hear insurers using this myth to justify high insurance premiums and to attack the rights of victims.

 

Concerning plonkers, sexism and professional dignity

I was once at a dinner at which I sat next to a former world snooker champion. He told me a story about a conversation, many years ago, between another leading player and an umpire which went something like this –

‘What would do say if called you a bent b******?’

‘I’d disqualify you immediately’.

‘What would you do if I thought you were a bent b******?’

‘I can’t stop what you think’

‘Well I think you’re a bent b******’

Which brings me nicely to two recent stories concerning how lawyers speak to each other.

Firstly there was the reprimand handed out to Richard Gregory Barca for calling an opponent ‘a complete plonker’.

http://www.lawgazette.co.uk/practice/solicitor-reprimanded-for-email-calling-opponent-a-plonker/5050611.fullarticle

To many this was a light-hearted reference to a favourite word used by Del Boy Trotter. The Solicitors’ Disciplinary Tribunal found that this ‘tipped over into unacceptable conduct’. To be honest this sort of language is completely alien in the context of most litigation that I have ever handled. Whilst you want to advocate robustly for your client it should never become a personal confrontation between the lawyers. Some of my best friends in the profession have been regular opponents. This is because you spend so much time dealing with each other that you develop a mutual respect – not in a Stockholm Syndrome sort of way! You just learn that being respectful can lead to an effective outcome for your clients.

The second story shows that being offensive does not need to involve the use of insulting words.

This is the unfortunate LinkedIn message sent by solicitor Alexander Carter-Silk to barrister Charlotte Proudman. He began by saying – ‘I appreciate this is probably horrendously politically incorrect but that is a stunning picture.’ He then went on to say - ‘You definitely win the prize for the best Linked in (sic) picture I have ever seen.’

http://www.lawgazette.co.uk/practice/firm-sorry-for-partners-misogynistic-linkedin-email/5050882.article

Now if you read any message which begins with a reference to political correctness you have a fairly good idea of what is coming next. Every time I read those words I want to curl up under my desk in embarrassment at the thought of an experienced member of my profession coming out with something like that. I am tempted to use the P word. But in fact it is more serious than that.

I can remember a time when it was almost unheard of to have a woman partner in a law firm. I can remember newly called women barristers of my age who struggled to get work because of their sex. Some even struggled to find a loo that they could use. In 2016, Liverpool Law society will have the 5^th woman President in its 189 year history, although Alison Lobb will be the 4^th in the last 10 years. So things are changing. Most of the bright young lawyers in my own firm are women.

So we are making progress. But there is still some way to go. In 2014, Lady Hale, the most senior woman judge in UK history, called for greater gender equality across our legal system –

http://www.independent.co.uk/news/uk/home-news/more-women-judges-will-improve-law-britains-only-female-supreme-court-judge-calls-for-more-diversity-9630884.html

We are moving steadily forwards. There are encouraging signs of progress. Then we hit a moment like this when an experienced solicitor drags us back a few decades. On what planet in 2016 is a professional woman measured by her photograph?– on a platform designed to enable us all to showcase professional skills and experience. It is like hitting the wrong square when you think you’re about to win a game of snakes and ladders.  

This is nothing to do with being politically correct.

It is about professional people treating each other with respect and dignity.

Fixed Fees in Medical Cases and conflict at the Law Society

I talked recently about Government plans to limit the fees recoverable by those who represent victims of Medical Negligence –

http://thestevecornforthblog.blogspot.co.uk/2015/08/concerning-fixed-fees-and-more-attacks.html

This is an issue which has been simmering for a while. 

Back in 2014 the Telegraph wrote an overtly political article which was titled – Ambulance Chasers push NHS Costs Bill to £200m.

http://www.telegraph.co.uk/news/nhs/10612181/Ambulance-chasers-push-NHS-costs-bill-to-200m.html

The article blamed Claimant lawyers, alleging that they were adding to the beleaguered NHS bill. In particular they quoted the, then, CEO of the NHS Litigation Authority, Catherine Dixon – 

“They [some lawyers] are trying to maximise their profit. It seems to me that it is out of kilter with the level of damages they are seeking to recover from their clients and defence costs. I don’t think that charging significantly higher costs is appropriate, particularly against a body like the NHS which is looking after the health of the nation.”

She alleged that Law Firms frontloaded the costs by conducting ‘extensive investigations’. Anyone who has ever done one of these cases knows that you have to investigate any case before you submit a claim because advice from a medical expert is essential. The Telegraph stated that NHSLA had provided them with a list of firms whose costs had been reduced following assessment by the court.

In the light of recent rhetoric from the DOH Ms Dixon’s words are particularly alarming. This is because she is now the CEO of the Law Society. In this role she will inevitably be called upon to argue the case for lawyers to be paid fairly for the work done. This has to put her in a conflicted position. She has not merely argued the case for cutting back on the costs of those fighting for victims. She has associated herself with an undisguised political agenda which included publishing the names of particular law firms. These are firms which have done nothing wrong other than do their best for their clients within a legal costs system created by ministers.

The President of the Law Society has inevitably had to come to her defence saying that she was fully committed to ensuring that claimant lawyers were fairly rewarded. She herself has written in the Law Society’s Gazette calling for investment in NHS care as the effective way to reduce the legal bill. Some of us have been saying that for years.

 http://www.lawgazette.co.uk/analysis/comment-and-opinion/costs-and-clinical-negligence/5050646.fullarticle

The problem is she that is on record as saying what she thinks constitutes ‘fair reward’. How can she conduct robust negotiations on behalf of Law Society members? Will she openly repudiate what she said in the Telegraph Article and the tactics used by the organisation which she led.

Negotiations inevitably involve concessions. I suspect that fixed fees at some level will be introduced in medical negligence cases.

How can the Society’s CEO conduct realistic negotiations without constant reminders of what she has previously said and done.

It is a worry.

The Day the QOCS stopped

The 1^st April 2013 is a date which is ingrained in the memories of most litigation lawyers, especially those of us who act for victims of accidents, industrial diseases or medical negligence. It was the day that changed the world.

Almost all of these cases are dealt with on a no win no fee basis, so the claimant’s lawyers do not get paid if they do not win. Following implementation of the Jackson Report it was no longer possible to recover insurance premiums or success fees from defendants in successful cases, apart from a very limited exception in medical negligence cases. Recovery of these additional liabilities had been the foundation stone of the steps taken by the Labour Government in 2001 to remove Legal Aid for Personal injury work.

To mitigate the effect of this, the government introduced Qualified One Way Costs Shifting (QOCS). This meant that, in most cases, if a claimant lost a case they would not have to pay the other side’s legal costs. This in turn meant that there was no longer any need to take out insurance to cover those costs. So a claimant of limited means could pursue a claim with the comfort of knowing that they would not face a huge legal bill at the end if they failed.

The protection can be lost if there is evidence of fundamental dishonesty. It can also be lost in cases in relation to offers to settle under Part 36. I don’t propose to go into those detailed rules today. Kerry Underwood has written an excellent summary here –

https://kerryunderwood.wordpress.com/2013/05/17/qualified-one-way-costs-shifting-qocs/

The theory behind all this is to enable claimants to seek justice and sleep at night.

Sadly the theory and the reality are different. A claimant can be ordered to pay all of the other side’s costs if a claim is struck out because it shows no reasonable grounds for bringing the claim.

This is demonstrated by the tragic case of Wall v British Canoe Union. Mr. Wall was killed in a canoeing accident in January 2012. He was 49 years old. To make matters worse the accident was witnessed by his 16 year old daughter. The action was brought against the defendants as publishers of English White Water – The BCU Guidebook. The allegations were that the publication failed to give adequate warnings of the dangers at the particular waterway at which Mr Wall had his accident. Earlier this year Judge Lopez in the Birmingham County Court struck out the claim on the grounds that Mrs Wall had no reasonable grounds to pursue the claim. . It was found that the publishers owed no duty of care to readers of their guide. There was an insufficient relationship of proximity. The judgment is an interesting summary of the law of negligence and Gordon Exall has published a summary here –

https://civillitigationbrief.wordpress.com/2015/08/18/qocs-striking-out-and-the-liability-to-pay-in-full-a-county-court-decision/

So the unfortunate Mrs Wall, having lost her husband, also lost her claim. But the tragedy does not end there. She was also ordered to pay all of the Defendants’ legal costs. This is because the judge decided that she had no reasonable grounds to bring the claim. So she could now lose everything.

When I first read the judgment, I just thought that she must have been badly advised to have brought this case in the first place. But on reflection the judgment is disturbing. Here is an honest victim who has lost her husband and whose children have lost a father. The whole idea of QOCS is to enable such victims to bring their claims without the fear of costs and without the need for insurance. It was certainly not a spurious claim. The judgment runs to 38 pages. There were real arguments about the extent of a duty of care to readers of the guide.

Was it really the intention of the rules on QOCS, to deter victims from bringing such claims for fear of losing their homes? Where does this leave the development of the common law? Imagine where we would be if Mrs Donohue had been too scared to sue Mr Stevenson. Our legal system, which has been copied across the world, has been build on the basis of groundbreaking cases that have pushed the boundaries.

This is likely to grind to a halt following decisions like this.

That is not to criticise the judge who acknowledges that he is required to apply the law.

What we need is a revision of these rules on QOCS which were hastily introduced and help nobody.

Concerning fixed fees and more attacks on vicitms of medical blunders

The government is now consulting on the introduction of fixed recoverable fees in all Clinical Negligence cases with a value up to £250k. That will catch some very substantial cases involving severe disability.

It is no surprise that the move is justified on the basis of criticism of those law firms who represent victims. In a report mentioned by Litigation Futures the Department of Health says –

“in the experience of the [NHSLA], significant costs are often incurred by claimant lawyers in the pre-litigation and pre-notification period and are not subject to costs budgeting requirements. There is also evidence of claimant solicitors attempting to claim costs well in excess of the current guideline hourly rates, and considerably higher than the NHSLA pays its defence solicitors.”

http://www.litigationfutures.com/news/government-targets-100m-savings-fixed-fees-clin-neg-cases-250k

I have mentioned before that it is inappropriate for the organization which represents the NHS to try and control the level of legal costs which they have to pay. They are clearly conflicted. Remember they are only paying anything in cases where liability is proven or admitted. A case involving awards up to £250k means life changing injuries.

http://thestevecornforthblog.blogspot.co.uk/2015/07/medical-negligence-criminal-legal-aid.html

Now I need to say that I am not particularly worried by the likelihood of fixed fees in straightforward cases.  I have long suspected that they were inevitable especially as costs budgeting seems to have been a shambolic and expensive experiment. Fixed fees are now widely used in commercial litigation and transactions. Payment by the hour is perceived as a reward for dragging cases out, particularly those which are not complex. But many cases up to £250k will be very complex.

What is clear, is that this is an attempt to reduce the number of genuine claims and the amounts payable to victims. If the NHS does not have to pay full legal costs in those cases where they are clearly at fault, it is the victims who will have to pick up any shortfall.

The NHSLA need to review their own conduct. I have started court proceedings in two cases, in  the last month, where the NHS failed to respond to a letter of claim within the four months set out in the pre action protocol. In both cases they have subsequently admitted liability. The legal costs are now much higher then they would have been. Why is that the victim’s fault?

It is also reported today that the NHSLA routinely fail to make interim payments to victims –

http://www.clinicalnegligencelaw.co.uk/2014/06/13/is-the-nhsla-failing-to-make-interim-payments/

Many cases are aggressively contested and then settled late in the day for modest damages and huge legal costs. If these cases were resolved at an early stage there would be massive savings.

We have seen a developing pattern over the last few years where victims, and their representatives, are attacked as a prelude to the introduction of measures designed to shrink access to justice. I suspect that some form of fixed fees is inevitable across all civil litigation. But this has to be based on sensible and commercial discussions and not inflammatory rhetoric.