Written evidence submitted by Mrs Madeline Seibert (NLR0008)

I am a claimant clinical negligence solicitor with specialist panel membership of AvMA (Action against Medical Accidents).  My firm is also a member of the Society of Clinical Injury Lawyers (SCIL).

• What is the impact of the current cost of litigation on the financial sustainability of the NHS and the provision of patient care? 

The cost of litigation follows on from NHS errors and therefore by reducing those errors and preventing unnecessary harm to patients the resulting cost of litigation will reduce. 

The cost of current litigation, that is damages and Claimant legal costs, is in any event reducing as detailed in the NHSR Annual Reports of 2020 and 2021. This is despite increasing Defendant costs.

The NHS must learn from its mistakes, including to identify and remedy the causes. In 2017 the National Audit Office was critical of the failure of the NHS to used data gathered from claims. 

• What are the key changes the Government should consider as part of its review of clinical negligence litigation? In particular: 
• What changes should be made to the way that compensation is awarded in clinical negligence claims in order to promote learning and avoid the same problem being repeated elsewhere in the system? 

Our justice system’s common law principles provide that the wrongdoer pays compensation which puts their victim in the same position, so far as money can, that they would have been in had the negligence not occurred. 

We should not undermine the rights of harmed individuals to reduce the cost of harming them to the wrongdoer – especially when that wrongdoer is controlled by the Government itself.  This would be an abuse of constitutional power.

The correct approach should be to look at why there are failures of patient safety  for example what is it about the structure of the NHS which means separate Trusts repeatedly make the same errors and how can there be structural reform of the NHS to overcome that?

Wide ranging Tort reform only in respect of clinical negligence cannot be allowed – if there is to be reform then it should be across the whole of the civil justice system and will require primary legislation changes.  This is highly unlikely to achieve any costs savings and will probably increase Government spend as injured claimants will rely on the public sector for benefits, social and health care as opposed to receiving  compensation to pay for rehabilitation through the private sector.

• How can clinical negligence processes be simplified so that patients can receive redress more quickly? 

In my experience as a Claimant clinical negligence lawyer, collaborative approaches between Claimant and Defendant lawyers is increasing and is reducing costs.  A good example of this is the Covid 19 Clinical Negligence Claims Protocol 2019 negotiated by NHSR, AVMA and SCIL.

To improve the efficiency of the administration of lower value claims the Society for Clinical Injury Lawyers of which I am a member has created a Scheme which suggests a way to improve the system and also allow for learning without the fear of recrimination for clinicians and to avoid future harm.

• How can collaboration between legal advisors be strengthened to encourage early and constructive engagement between parties?  

SCIL, AvMA (of which I am a panel member) and NHSR are currently working well together.   The majority of lawyers dealing with this work are either AvMA or Law Society Panel members and this specialism ensures continuity when talking with Defendants such as MDU, MPS, NHSR and their panel firms. The SCIL Scheme further encourages collaborative working and resolution of claims without the need for Court proceedings.

• What role could an expanded Early Notification scheme play in improving transparency and efficiency system-wide?  

More resources are required for this to work.  The scheme should be more independent of the NHS itself. Clinicians still fear recrimination from their employer or regulator and there appears to be a lack of training about the system which means that many Trusts do not engage with it, or families are unaware that their child’s birth has been referred to this scheme. Families are also not being signposted to organisations such as AvMA at any stage of the ENS process so that they can obtain independent advice on the process and its outcome.  This undermines the transparency of the scheme (and thus also its credibility).

• The Government has reiterated its intention to extend fixed recoverable costs, which limit the amount that can be paid out to meet legal costs, to clinical negligence cases with settlements of less than £25,000. At what level should these fixed recoverable costs be set, and are there any circumstances in which they should not apply to low value clinical negligence cases? 

SCIL has responded o the Government’s FRC proposals and await the consultation. SCIL has provided the Government with its Scheme which offers a solution to lower value claims, without the associated fixing of costs, and have suggested a pilot of the scheme over a trial period.

The assumption that the solution to the cost of clinical negligence litigation, is to cut costs rather than to reduce harm is completely the wrong approach. That is why patient safety and learning is at the heart of the SCIL Scheme.

The last 2 NHSR annual reports show that costs and damages are reducing in any event.

• To what extent does the adversarial nature of the current clinical negligence system create a “blame culture” which affects medical advice and decision making? 

The Committee is presuming that the system creates a blame culture but I have seen n o good evidence of this.

I have however seen evidence that NHS staff fear recrimination from their employers and regulatory bodies for whistleblowing. There was £27m paid in claims by NHS employees that they were stressed or bullied in the previous 5 years in a recent NHSR report (see link below). That report found no evidence that clinical negligence litigation was part of the “blame culture”.

https://resolution.nhs.uk/wp-content/uploads/2019/07/NHS-Resolution-Being-Fair-Report.pdf

Lord Edward Garnier was reported as saying on the proposed FRC reforms about the “delay, deny and defend” culture and this is what needs to change. It must be remembered that 90% of potential clinical negligence cases are investigated by lawyers and do not proceed.

My own firm has a rigorous “screening” process of potential clinical negligence enquiries and claims that do not have prospects once investigated are discontinued.  This is all without any payment whatsoever as the cases are investigated under “no win, no fee”.

The cases that are progressed are tested to the standards of the high legal thresholds which currently exist at common law, supported by independent medical experts and are not pursued lightly but after much investigation and assessment (under “no win, no fee” agreements). Removing specialist lawyers will lead to a massive increase in litigants in person without the benefit of specialist firms screening out the claims without merit. 

• How important is it that any clinical negligence system encourages lesson learning and commitment to change as the result of any action? 

It is imperative that patient safety is at the heart of litigation and that lessons should be learnt without fear and recrimination for clinicians.  It is why claims are important patient safety learning opportunities in their own right.

There have already been too many health scandals to show where there are problems in the system such as Telford, Patterson, Shipman etc. Many of those scandals have only been exposed because of the work of specialist Claimant clinical negligence lawyers. 

• What changes should be made to clinical negligence claims to enable a move away from a blame culture and towards a learning culture in the NHS? 

I have not seen any evidence of a blame culture caused by clinical negligence litigation, rather the blame culture (if it exists) is one within NHS organisations. It is simply wrong to lay the blame for that at the door of the innocent patient victims of clinical negligence.

• How can the Healthcare Safety Investigation Branch work to improve short term responses to patient safety incidences and therefore reduce the number of those who are forced to pursue litigation as a means of obtaining non-financial remedies? 

It will involve a lot more funding to increase the breadth and depth to capture all patient safety learning points, and speed up its investigations.

External investigation of incidents is to be welcomed as internal investigations are, for obvious reasons, carried out by the colleagues and employees of the organisation which creates a risk of defensive investigation. Many of my clients have said that they would not have resorted to litigation if they received a full and honest apology together with an explanation of what went wrong and confirmation of the steps that are being taken to prevent the same thing from happening in the future.

However, financial circumstances and the provision of care, equipment and therapies in the NHS sector means that many will be left with no choice but to seek compensation.

What legislative changes would be required to support these changes? 

The current tort system works well and has stringent tests in place to ensure that matters are looked at properly and that people are not over compensated.  Any tort reform would have to be across the whole of the civil justice system to avoid a very easy judicial review of its reasonableness, and would require primary legislation to alter the common law. If we make the NHS safer, we have no need of other reform.

Oct 2021