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What impact will Department of Health proposals have on medical negligence cases?

View profile for Judith Thomas-Whittingham
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What impact will Department of Health proposals have on medical negligence cases?

The Department of Health propose to introduce fixed recoverable costs in clinical negligence cases and place a restriction on the medical expert fees which are vital in investigating these cases.

The current proposals set to introduce this regime for cases which award compensation in the sum of £25,000 or less. The claims may be valued higher than this amount but due to a number of factors including risks of litigation and under settlement of claims by the NHS, the fixed costs will be imposed if the compensation that is paid is equal to or less than this sum.

The effects of this are far reaching. However, there is a large cohort of people who will most likely fall into this category of compensation being less than £25,000. These groups are outlined below with examples taken from real cases which we at Stephensons have previously successfully assisted clients with bringing a claim.

As a firm we submitted a lengthy response to the government consultation which closed on the 2nd May. Read our response here.

Death of elderly

In accordance with the data provided by the NHSLA (now NHS Resolution) in their annual report 2015/16, claims involving patients aged 68 or over accounted for 18% of all claims reported to the NHS during that year but of these 18%, almost 45% of fall within the bracket of compensation being less than £25,000.

Even if we are able to prove that the negligent care or lack of treatment has caused the elderly patient’s death, the value of the claim is very often limited to statutory bereavement damages (which is currently £12,980), and this is if they have a surviving spouse, funeral expenses and an amount for the short period of time in which they have suffered.  If this is a matter of days then the amount is very minimal.  There is less likely to be a claim for future dependency as the deceased is usually no longer working and therefore no claim for dependency on earnings.

If the deceased has not left a surviving spouse then it is even less likely that these cases will be economically viable to investigate should the fixed costs regime be introduced as planned as the value of these cases are limited to the period of unnecessary pain and suffering and funeral expenses.  Rarely do these types of cases attract awards over £25,000.

There are many concerns with this. Not only will family members be denied access to justice to seek compensation on behalf of the negligent death of their loved one, undoubtedly patient safety will suffer.  No longer will these cases be reported to the NHS Resolution or other medical defence organisations and therefore the opportunity for the Trust or other appropriate body to investigate and ensure that there is not a trend of high adverse incidences will be missed.  Deaths in the elderly will go unnoticed, forgotten and not investigated.  Families will be denied explanations as to the cause of their loved ones death and lessons will not be learned to prevent incidences happening again.

Death of a child

Amongst the more harrowing of clinical negligence claims are those that relate to the death of a child. It is often difficult to explain to a parent that even if they were to succeed in their claim the statutory bereavement valuation of such a claim is only £12,980. This would mean that claims relating to the death of a child will fall within the proposed scheme.

Nothing can be more devastating to a family than to lose a child and more so to learn that it was due to clinical negligence and could have been avoidable. To erode or remove the ability of the family to investigate such claims would be a devastating blow to the family. The process of investigating bereavement claims often provides the family with answers and closure, allowing them to move on with their lives.

Stephensons recently assisted a very young single mother whose 10 month old son died when she took him in to hospital with cold-like symptoms. The mother was subsequently implicated in her son’s death and suffered police and media scrutiny. We helped to prove that the death was due to the negligence of the hospital and the claimant recovered a very modest amount of compensation. Under the proposed fixed recoverable cost regime it is unlikely that we would have been able to assist this claimant and she would not have received the answers and result that has had such a dramatic impact on her life.

Pressure sore claims

Stephensons are regularly approached by individuals who have suffered potentially avoidable pressure sores as a result of clinical negligence. These patients are not just the elderly but also those who have recently undergone surgery or even maternity care.

Pressure sores are usually avoidable with good medical care.

Often the sores are very severe and take many months to heal, exposing the patient to unnecessary pain and discomfort.  It can often also have an impact on the recovery of the medical condition which they initially sought medical treatment for.

We have previously assisted a client who suffered an avoidable grade 2 sore to his heel. This sore took over 10 months to heal and he was awarded over £11,000 in compensation. Unfortunately, under the proposed fixed fee regime, it would not have been commercially possible for us to have assisted this client, nor the many other individuals with similar injuries.

Delay in diagnosis of fractures

Most of us know someone who has suffered a broken bone (fracture) through an accident or perhaps have even suffered one yourself.  They are a common injury but can be a very painful one. Depending on the severity of the injury, most fractures can fortunately be treated conservatively in a plaster cast to allow the break to heal.

However, fractures can on occasion be mistaken by doctors and nurses as other injuries such as sprains and sometimes radiologists can fail to spot that there is a fracture on an x-ray. This can lead to a delay in diagnosis of the fracture for some weeks or even months and during this time the injured person continues to suffer unnecessarily as well as potentially being unable to work and needing some assistance at home.

Thankfully, most delays in diagnosing fractures do not cause long term damage and the break will still heal in a plaster cast. Stephensons have acted for a number of people who have unfortunately suffered a delay in diagnosis of a fracture. One client of ours suffered a 9 day delay in diagnosis of his fracture and during that time experienced high and avoidable levels of pain and suffering. He struggled to work, (not being in a position to take unpaid leave) and at home needed help from his wife. He also suffered problems sleeping due to the discomfort. He recovered £1,000.

This is just one example, and many of our clients have sadly suffered longer delays for a diagnosis of fractures.  They too have recovered compensation but thankfully due to there being no long term damage caused by the delay, the claims have been mostly limited to under £25,000.

Unfortunately, under the proposed fixed fee regime, it would no longer be possible for us to act for these clients and unless they could manage what is a complex and stressful claims process themselves, they would be denied access to the justice and compensation they deserve and need, particularly when that money is needed to replace lost earnings. 

Stillbirths

Another type of case which Solicitors may not be able to investigate in a fixed recoverable costs scheme are instances where women have suffered a stillbirth as a result of a hospital’s negligence. The law already fails to provide women who have suffered from a stillbirth with so-called “Bereavement Damages” as legally this is only an option in cases where a child has been born and has subsequently passed away. We are therefore limited to compensation for the “failure to bring a pregnancy to a successful conclusion” even in cases where the baby was near or at term, any psychiatric injury and also for out of pocket expenses incurred. These are therefore often low value cases, particularly if patients have not suffered from any diagnosable psychiatric injury.

We have recently settled a claim for a client who suffered a stillbirth. She had attended hospital after her waters had broken but was discharged and informed that she should return for an induction of labour the following day. The hospital had failed to take into account of her raised heart rate and had not commenced CTG monitoring (Cardiotocography which measures the baby’s heart rate and any contractions). If the client had stayed in hospital, her heart rate and temperature would have been monitored and she could have undergone an induction to deliver a healthy baby.

Following her discharge from hospital, our client attended a pre-arranged appointment with her midwife and was informed that the baby’s heartbeat could not be located. She subsequently gave birth to a baby boy who was stillborn at 39 weeks’ gestation.

Our client received £10,000 in compensation from the Trust. In order to prove the case, we had to obtain an expert report from a Consultant Obstetrician and a Consultant Psychiatrist who assessed whether she had suffered from a psychiatric injury as a result of the negligent treatment. 

In any fixed recoverable costs scheme, this type of case could not be pursued due to the expensive expert reports which are required in comparison to the fairly modest compensation. Our client would have had to continue to live her life without answers as to what happened to her baby. Although no amount of money would ever compensate her loss, the acknowledgment from the Trust that she hadn’t done anything wrong was vital to provide her with the closure she needed. 

Dental claims

Stephensons have acted for many clients who have experienced pain, suffering and loss of amenity as a result of dental negligence. The cases we have dealt with range from improperly placed implants, to an avoidable abscess or infections that may have spread to the sinus or bloodstream.

We have recently assisted a client whose dental practitioners failed to diagnose, advise her, and provide assistance to manage her periodontitis over a number of years, resulting in moderate bone loss in her jaw. She had 4 teeth extracted as a result of the negligence, and implants placed. She experienced psychological distress as a result. With correct care, the periodontal disease could have been managed, and on the balance of probabilities, her teeth and jaw bone loss could have been avoided. 

On this occasion we were able to recover £21,500 for the client. Often, dental negligence claims attract compensation awards between £5,000 and £15,000, depending on the severity of the injuries.

It is likely that we would have been prevented from assisting the above client with her dental negligence claim under the new fixed fee regime, as it would no longer have been commercially possible to do so. Sadly this means that many clients suffering from dental negligence may be denied the opportunity to pursue a claim altogether.

Delay in diagnosis of cancer

We represent a number of clients in delay in diagnosis of cancer claims. For a number of reasons, these claims can sometimes be of relatively low value. We have to be able to prove that not only that there has been a failure to diagnose the condition, but that this has made a difference to the treatment that the client has needed and/or their prognosis/life expectancy. Although there is a lot of research being done, unfortunately, it is not always clear whether, statistically, someone would have had a better outcome if the cancer had been diagnosed sooner. There are also many cancers that are quite aggressive and it is difficult to say that an earlier diagnosis would have changed the treatment that was needed.

In these circumstances, the client still has a claim, as with an earlier diagnosis they would have been able to receive the palliative care, pain medication and treatment that they needed earlier and so would have avoided months of unnecessary pain and suffering. However, these claims are unlikely to attract compensation of £25,000 or more.

Stephensons have recently settled a neuroblastoma (a rare type of cancer that affects mostly babies and children) case for £17,500. With this type of cancer the diagnosis is often made late, as children are unable to tell doctors specifically were the pain is or what their symptoms are. This is why doctors should be carrying out the appropriate tests to diagnose the condition earlier.

Trials are still being carried out regarding the treatment for neuroblastoma and the outcomes of this treatment are not yet clear. However it is believed that, if the neuroblastoma has progressed at the time of the diagnosis (or when it should have been diagnosed), then the outcome is poor.

People will know that pancreatic cancer is also a very difficult cancer to treat and, sometimes whether you have treatment or not, the outcome is quite poor. Even if there is a delay in diagnosis, it can therefore be difficult to prove that the delay has had any impact in terms of treatment or outcome. These claims are, however, very important as with a timely diagnosis appropriate palliative care and support can be given to the client. They are also given the opportunity to understand and accept the serious nature of their illness and have the time to put their affairs in order and to spend quality time with their family and friends. We have settled a claim where the client was eventually diagnosed with pancreatic cancer on the Friday and then died the following Monday. The client’s husband was awarded £12,500 in compensation.

These types of cases are often very important for the client or their family and they are very upset that they were not given the chance of a better outcome.

Under the proposals to fix recoverable legal costs in clinical negligence cases, it is unlikely that clients, or their bereaved families, will be able to seek expert assistance to investigate cases relating to a delay in diagnosing cancer as they frequently fall under the £25,000 threshold.

Psychological injury claims

The law surrounding cases involving psychological injuries is very complex and such claims are usually very difficult to prove. Even if we are successful in proving that a psychological injury was caused or exacerbated by negligent treatment, the injury itself is often complex and the diagnosis and prognosis are often uncertain.

Unless the injury is particularly severe, (for example, if a person is unable to work as a result of his/her injury and/or where the prognosis is particularly poor) such claims often fall below the bracket of compensation being less than £25,000. This is due to the fact that the compensation is often limited to the psychological injury itself and any treatment (usually counselling) to improve the prognosis.

For a moderate psychological injury, an injured patient can expect to recover no more than £15,950 for the injury itself even though the effect of such an injury can be quite significant on the Claimant’s life.

We are currently assisting a lady who suffered a moderate psychological injury after having a drain negligently stitched to her abdominal wall. After an unsuccessful attempt at trying to remove the drain by medical staff, she was returned to theatre for surgical removal. She suffered flashbacks and nightmares as a result of the failed attempts at removal of the drain and the requirement for further surgery, however, she is not expected to recover more than £20,000 in compensation.

Essentially, under the new government proposal of fixed costs, it would be very difficult for clients with such injuries to obtain legal representation and many would lose the opportunity to have a full investigation of their case and, if appropriate, to recover compensation for their injury.

Minor surgery

We see many cases where negligence has occurred resulting in avoidable minor surgery that would not otherwise have been required.

The prospect of undergoing additional surgery for many people can be quite harrowing. Not only do they often require avoidable anaesthetic or sedation but they can also be left with unnecessary or more extensive scarring.

Despite this, the compensation for such cases is usually very low and nearly always falls below £25,000. For the surgery and scarring itself, the Court will usually award no more than £7,230. An injured patient may also recover compensation for lost earnings or any care and assistance required during the period of recovery, however, in many cases of minor surgery, this is fairly minimal and would not justify an award of over £25,000.

Examples of cases that may fall within this bracket are cases involving surgery to remove instruments or swabs that have been retained following a procedure, surgery to repair a missed fracture where there has been no effect on the persons prognosis, and corrective surgery following a negligent initial attempt.

Under the government’s proposals, cases such as these would not be economically viable to investigate.

Breast surgery claims

Despite a 40% drop in cosmetic surgery procedures in the UK in 2016, the most popular surgical procedure for women in 2016 was breast augmentation, with 7,732 procedures carried out. This is according to data from the British Association of Aesthetic Plastic Surgeons (BAAPS).

A number of problems can stem from the procedure.  Breasts can in some instances be left disfigured and extremely asymmetrical and may require another operation to rectify the disfigurement.  Issues can also can occur with regards to patients not being fully informed of the risks of the procedure beforehand. Sometimes, patients also suffer psychological injury as a result of their experience.

Stephensons have previously acted on behalf of a patient who underwent breast augmentation, following which she was unhappy with the size of the implants which had been inserted and the appearance. She sought a second opinion and had to undergo two additional operative procedures to correct the appearance.  Had she been appropriately informed prior to the procedure, she would not have undergone the breast augmentation. She received £18,000 in compensation.

The majority of these cases are awarded under £25,000 in compensation. If the fixed fee proposals are implemented, then due to the extensive amount of investigative work that is required, it may not be financially viable for specialist clinical negligence solicitors to assist.

If patients are not able to approach solicitors regarding claims such as these then there may be repercussions for patient safety, as repetitive incidences from one surgeon may well go unnoticed.          

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