The challenging future of clinical negligence litigation

Like almost every other profession, discipline and walk of life, clinical negligence practitioners have seen a huge transformation wrought by the pandemic.

By all accounts, the sector coped remarkably well under the restrictions that were so hastily introduced, last year. A lot of credit has rightly been given to the engineers of the COVID-19 Clinical Negligence Protocol agreed between NHS Resolution the Society of Clinical Injury Lawyers (SCIL) and Action Against Medical Accidents (AvMA).

The protocol, however, was not formally introduced until August, by which time solicitors, barristers, judges and numerous other professionals had already found new ways to progress cases in the highly challenging circumstances, and even hold hearings in person, where necessary and possible.

Despite all this, and the tentative easing of restrictions over recent months, the latest transformation of the clinical negligence sector is far from complete.

While there seems to be a broad consensus that claims of negligence in treating people with the coronavirus are unlikely to create the ‘tidal wave’ of litigation from patients and their families that some predicted, there is very serious concern that delays in diagnosis and treatment for other conditions may have caused irreversible harm to many, that will lead to significant numbers of new claims.

There are also, of course, the backlogs and increased delays with which solicitors in almost all practice areas are having to contend. But these are especially difficult in clinical negligence cases that can already take years to resolve and on which victims and families have so much at stake. Any surge in cases from the secondary effects of the pandemic will only exacerbate those delays.

These factors combined - a surge in claims that are already taking longer to resolve - will also have severe implications for the funding of cases.

Funding was one of the recurring themes discussed in a roundtable that I chaired, earlier this year, with representatives from SCIL, AvMA, the Association of Personal Injury Lawyers (APIL) and the bar.

The subject was already clearly a cause for concern across the sector before the pandemic, as the squeeze on funding has increased both costs and risk for firms, in recent years. But these trends look set to continue, as the pressures on all sides of the funding equation mount.

Perhaps though, we have reason to be optimistic about the future and shouldn’t be surprised that the sector responded so positively in the unprecedented circumstances of last year.

The practice of clinical negligence law has been turbulent for many years, always adapting to the latest initiatives and changes, always looking ahead in preparation for future proposed reforms. Whatever challenges may materialise, the sector has risen to meet them, developing new practices, new insurance solutions, new funding arrangements and new approaches.

The very latest of these challenges has just emerged in the detail of a report from the House of Commons Health and Social Care Select Committee on the provision of safe maternity care.

Obstetrics and gynaecology are, of course, the areas in which there are far and away the greatest financial and human costs in clinical error and, therefore, the greatest potential benefits to be gained from improvements in care.

The conclusions of the Select Committee’s report include many apparently sensible recommendations on matters such as training, learning from incidents and data sharing. However, it also includes recommendations to compensate families on the basis of NHS care provision rather than the cost of private care, and to standardise compensation against the national average wage.

As well as requiring patients who have been injured by the NHS to rely on the same institutions and personnel for the care they need as a result of the original malpractice, these measures are clearly designed to significantly reduce the compensation that injured patients receive.

Just as APIL advised in the written evidence it submitted to the enquiry, transparency and accountability are the keys to improving patient safety which, in turn, will also reduce not just the financial costs of medical negligence in the NHS, but the human cost too.

We await the Government’s response to the Select Committee recommendations, which should come by September but, even once this latest challenge to justice for patients has been addressed, there will inevitably be further attempts to inhibit the work of those who only act in the interests of people who have been harmed by medical mistakes, or who may be harmed in the future.

It is perhaps a mark of all those involved that, whatever those future challenges may be and whether they emerge from government, NHS Resolution or insurers, all parts of the system will continue to work together to enable injured parties to access the justice system and achieve redress.

This article was first published in the Law Gazette.

Disclaimer - all information in this article was correct at time of publishing.