Written evidence submitted by Leigh Day (NLR0029)

Leigh Day

1. Leigh Day is a leading UK Law Firm, specialising in Medical Negligence, Personal Injury, Asbestos & Industrial Diseases, Employment, Human Rights, Product Safety & Consumer Law, International and Regulatory & Discipline.

2. In 35 years of practise, our lawyers have represented clients who have suffered debilitating injuries which often have a profound impact on their physical and mental health

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

3. There is a common misconception that clinical negligence claims are ‘too expensive’ and that there has been an increase in costs. In fact, NHSR’s own annual report notes that the cost of damages paid out and the cost of claimant lawyer’s fees have decreased since the previous year. [1] In the financial year 2020/2021, payments for  compensation claims represented 1.5% of NHS England’s total budget, down from 1.9% the previous year.

4. Compensation in clinical negligence claims is often portrayed in the media as a ‘win’ for the claimant. This is not the case. Compensation is not punitive. All losses must be proven to be linked to the negligence and meticulously evidenced. The multi-million pound payments splashed in the media will include claims for lifelong specialist nursing care, provision of therapy, loss of earnings and housing adaptations. General damages, payments for ‘pain, suffering and loss of amenity’ are not large. The bracket for total tetraplegia in the Judicial College Guidelines with constant pain is £304,630 to £379,100. Who would trade their health and quality of life for such a sum? For cases which result in a death, the compensation for bereavement is £15,120 (£12,980 for deaths before 1 May 2020).  There are strict criteria to qualify. A bereavement award cannot be claimed by parents who lose a child over the age of 18, siblings, grandparents or grandchildren, for example.

5. Even if the above were not the case, it is not acceptable nor appropriate to link compensation  for patients with life changing injuries to the financial sustainability of the NHS.   Who would tell the parents of a baby with brain damage due to negligence, that the compensation they need to improve their baby’s life is ‘unsustainable’?

6. It is also inappropriate to tell the victims of failings in patient care that they cannot receive full compensation because that may impact future patient care.

7. Through our work we observe the devastating outcomes of failings in patient care. More often than not, the background to a clinical negligence claim will be an understaffed and under-resourced hospital ward or GP surgery. Two years ago, 90% of health leaders stated that understaffing in the NHS is putting patient safety and care at risk.[2] This situation has only been exacerbated by the intervening COVID 19 Pandemic.

8. Many bodies representing those who work in the NHS have made suggestions for improving financial sustainability and provision of patient care. Consideration of some of the below examples will have a more significant impact on the provision of patient care than debating whether or not compensation payments to = seriously injured patients is sustainable:

1. Invest in midwifery training, recruitment and retention to avoid the ‘midwife exodus’ warned of by the Royal College of Midwives;[3]

2. Abandon the current ‘GP rescue package’ and instead invest in GP training and recruitment to combat the increasing shortage of GPS and burnout of those in practice, as recommended by GPs[4];

3. Follow the recommendations of the BMA on the Health and Care Bill[5]: 

1. Protecting the NHS from further privatisation by ensuring that the bill explicitly cites the NHS as first choice provider when awarding contracts as well as blocking access to seats on ICS boards for private providers

2. To ensure that the bill includes a responsibility for the health secretary to produce to Parliament ongoing, accurate and transparent workforce assessments to directly inform recruitment needs

3. To strive for a truly collaborative and integrated healthcare system by ensuring that clinical and patients views are represented at all levels of ICS structures through the appointment of primary, secondary care and public health doctors independent of NHS management

4. Safeguarding against political interference in policy setting by limiting the powers available to the secretary of state.

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?

9. This question incorrectly suggests that the purpose of clinical negligence litigation is to promote learning and trigger systematic change within the healthcare system. This is simply not the case.

10. The sole purpose of the clinical negligence litigation process is to provide redress for the individual who has suffered harm through negligent care and the only remedy available to these patients at the end of a successful claim is compensation that aims to restore them back to the position they would have been in but for the negligence. There is no remedy available to compel an NHS Trust to reflect on the care and treatment it provided and put steps in place to ensure that the same thing does not happen again. To introduce such a remedy would be a fundamental change to English tort law.

11. It is true that lesson learning is sometimes (and is hoped to be) a by-product of the process. This is perhaps more likely if an inquest has precipitated the claim and a Coroner has made a Prevention of Future Deaths report. However, in our experience, this is often not the case. We frequently encounter negligent errors repeated, one such example being the issues with maternity safety, where we have seen repeated scandals gaining increasing public attention over the last years.

12. While lesson learning is not the purpose of clinical negligence claims, there is scope to encourage this to a much greater degree within the process. Often before a patient seeks to bring a claim, they will have raised a complaint to the relevant Trust. The handling of a complaint in the early stages can be used to promote learning if the process is objective and thorough. However, in our experience of reviewing reports prepared by Trusts, too often internal investigations are protective rather than objective, and opportunities are missed to identify wider systemic problems.

13. It is essential that the NHS has a robust system in place to audit the outcomes of complaints, inquests and claims and use this information to identify where there is a need to revise policies, training and allocation of resources.

14. However, the reality is that the NHS should not be depending on litigation  to identify areas within the system that require change. Clinical negligence claims (and the costs associated with them) are the consequence of a failure to appropriately monitor standards of service. It is essential for patient safety that the process of improving standards of care and treatment is a proactive rather than a reactive one, particularly when it is considered that the vast majority of negligent errors will never form part of a clinical negligence claim.

15. In 2018/2019, there were an estimated 564 million patient interactions with the NHS[6] That same year, NHSR received 10,678 new clinical negligence claims.[7] Studies have shown that adverse events occur in 8-12% of hospitalisations.[8] These statistics show that the number of people who bring claims are a small percentage of those who experience an adverse incident, and an even smaller number of those who use the NHS.  Those who make complaints about healthcare and who pursue claims are only a small proportion of NHS users and are not reflective of the wider picture of healthcare. 

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

16. Many of our clients approach us when a complaint has been mishandled, because they suspect the professionals are not being truthful and open about the causes of their injuries. We find that if a complaint or request for compensation is mishandled at an early stage, patients are more likely to seek legal assistance to obtain redress.. 

17. The majority of people do not want to sue the NHS and often if they were to receive an apology for the care received, they may not contemplate litigation. Unfortunately, even after the legislation imposing a Duty of Candour, it is often only through litigation that the true cause of an injury is revealed, due to the defensive approach we still see from individual clinicians and Trusts. Many patients seek redress which is not financial; if medical bodies approached complaints in a more constructive and conciliatory way, those complaints could be resolved without legal proceedings.

18. Earlier investigation into patient safety incidents along with earlier admissions of liability by NHS bodies will speed up the system and allow patients to access redress including compensation earlier. When a claimant patient approaches us with a detailed serious untoward incident report prepared by the body responsible for the injury, there is an opportunity to resolve complicated questions of liability and move to assessing the value of a claim quickly. However, we find that defendants are still reluctant to admit liability without the claimant presenting their own expert evidence within a formal letter of claim. To promote quicker resolution including compensation, it is vital that issues identified in a serious incident investigation are taken seriously and that defendants are encouraged to accept liability early where appropriate.

19. Potential defendants should be encouraged to make admissions as early in the process as possible. Even if causation cannot be established, if there is a clear breach of duty, early admissions of breach of duty can streamline investigations, saving both time and costs.  

20. We experience defendant Trusts denying liability for months or even years, only to make an admission or accept an offer to settle without t new evidence being presented.  Where a defendant later admits a breach that was clear from the beginning of a potential claim, there should be cost consequences for failing to make the admission in a timely manner.  There are currently cost consequences for refusing, or late acceptance of, a Part 36 Offer, but these do not apply unless the case goes to trial.

21. Obtaining disclosure is often a time-consuming process, largely due to defendants’ failure to comply with pre action disclosure requirements. When medical records are provided, they are often incomplete, re-requests escalates costs and delays proceedings. If there was a centralised system for applying for notes and easily enforceable costs consequences if they not provided within the 28-days, then this may create a more streamlined process, saving time, costs and promoting quicker resolution of cases. A centralised records system is also likely to improve patient care as different treating doctors will have easy access to a patient’s history.

22. It has been suggested that capping compensation would streamline the process to speed up access to compensation. Unfortunately, this suggestion is not valid or useful.  Each individual case is different and requires specialist input and consideration. It is often only through detailed consideration of the case that one can identify the longer term damage which has been sustained by a victim requiring compensation. Capping compensation would likely restrict access to specialist clinical negligence lawyers who are able to do this work cost effectively and to a high standard. Forcing such specialist work to lawyers without necessary expertise would be a false economy because of inefficiencies.. This would also have the effect of denying victims access to justice. Indeed, restricting the level of compensation that can be claimed may work out to be more expensive, as studies looking at how a no-fault system would work in England have shown. [9]

23. The law of tort has developed to compensate people who have been negligently injured, to restore them as far as possible to the position they would have been in should the negligence not have occurred. There would be no fairness if the victim of a road traffic accident was entitled to full compensation for their injuries and consequential losses, when a medical patient with the same injuries and consequential losses was not entitled to the same level of compensation.  The suggestion undermines the principals on which the law is based on and would inhibit access to justice for victims.

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

24. Wherever possible, defendants should make it clear from an early stage if they are not going to make admissions on breach of duty or causation.

25. At the early stage of investigation, we send out a detailed letter of notification with a breakdown of the documents we require. This list includes internal investigation documents, full sets of records and imaging and reports. The requested documents are regularly not provided and we often have to chase a response. If defendants complied with their duties of pre action disclosure fully, we would be able to make progress at an earlier stage. This would speed up resolution and save costs.

26. We believe that ADR should be compulsory for each case. This does not always need to be mediation, but could also be round table meetings which are sometimes more cost effective.

27. Defendants need to be willing to engage properly with a view to settling the claim when they attend ADR. In our experience defendants agree to ADR but attend with no authority to make increased offers to settle the case. While there may be some limited benefit in proposing ADR with no intention or authority to make financial offers to settle, this should be declared at the outset so the parties are aware of the prospects of successful settlement and the barriers to this.

28. Collaboration during the COVID 19 pandemic, including the agreement of a COVID 19 protocol for clinical negligence cases, has shown that there is willingness on the part of lawyers to resolve cases and avoid unnecessary litigation.[10] More scope for agreement between parties during the investigation of a case would be welcome, although this would need to be carefully monitored to ensure that Defendants are not using it as a delay tactic.

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

29. We believe that the government should be exploring at how ENS can improve transparency and safety, not efficiency.

30. In our experience the scheme hinders transparency because patients / families cannot directly participate. They are not able to provide statements as part of investigations and so their experiences are not taken into account. The scheme cannot achieve transparency when families are not given an opportunity to participate in the investigation.

31. To improve transparency, as part of the process families should be provided with copies of all statements taken from clinicians and a copy of all medical records. We have found when reviewing  the information the ENS have been provided that the records have been inadequate and the claimant representatives have had to repeatedly chase the Trust for missing documents. This escalates costs unnecessarily.

32. Any expert evidence obtained through the ENS should also be made available to family, who should have a say in choice of expert with advice from independent solicitors.

33. Families should be allowed to appoint an independent solicitor at no cost to assist them with reviewing any records, reports and statements provided. This is essential to ensure that they understand what happened.

34. In our experience families and their legal representatives have been asked not to investigate whilst the Trust carry out their ENS investigations. During this time, no updates are provided and, in some cases, requests for updates have been refused, leaving the family in the dark for prolonged periods. It is not reasonable to expect families not to carry out their own investigations in such circumstances when they have real need for financial compensation to care for a child

35. Furthermore, once the investigations are completed, Trusts decline to make early admissions. This further delays the process as families must then commence their own legal investigations.

36. The current system is incredibly limited and does not ensure transparency. We need to improve the scheme before it could be extended to all clinical negligence claims.

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?

37. A substantial amount of consultation has already been conducted on this by the Civil Justice Council. [11]  A majority of respondents to that consultation opposed the proposals on the basis that they represented a threat of access to justice and patient safety.  This was also stated in a letter signed by nine national charities. [12] It is unnecessary to comment further as the Government has indicated it intends to consult further on those proposals.

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

38. Claims against GPs and private practitioners are made against individual doctors but medical professionals should have insurance for this. Clinical negligence claims relating to NHS treatment in hospitals are brought against the Trust, not the individual clinicians.  This approach allows for the recognition that negligence is often a result of wider systematic errors such as lack of training, understaffing, insufficient polices and inadequate protocols etc.

39. Disciplinary matters on the behalf of employers and fitness to practice investigations are matters that are wholly separate to civil proceedings. The claimant has no influence on them, except for reporting their experience.

40. As claimant solicitors, we do not see injuries arising from defensive practice. If anything, Claimants are usually injured due to lack of caution on the part of individual clinicians.  The law allows for medical innovation as it is not negligent to provide care or treatment if it accords with a responsible body of medical opinion. This was given detailed consideration when the “Saatchi Bill” was introduced in order to give doctors a “safe space” to innovate.  The Bill was roundly rejected by medical professionals, legal professionals, and patient safety associates as not just unnecessary but dangerous.

41. Once a claim is being investigated, claimant solicitors correspond with the NHSR or an individual doctor’s medical defence organisation. Litigation is by nature adversarial, but individual clinicians are protected by the fact that it is conducted by lawyers. It is extremely rare that claimant solicitors have to correspond directly with a defendant medical practitioner.

42. When representing claimants, we regularly find situations where clinicians have accepted that errors were made, but the litigators on behalf of the Defendant do not admit liability or agree to pay compensation.

43. The current clinical negligence system does not create a blame culture. The blame culture arises from within healthcare organisations.  Claimants have no agency or influence in changing the culture of healthcare organisations; altering our system of litigation will have no effect on reducing the cultural problems in the health service.

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

44. The aim of clinical negligence litigation is that claimants are restored physically, psychologically and financially insofar as possible to the position they would have been in but for the negligence. This is a fundamental principle of tort law. However, in our experience, another motivation of many clients is to seek answers and to ensure that the harm they have experienced does not befall others. These objectives are sometimes prioritised over compensation. If patients were given a full explanation along with an apology and evidence of a genuine commitment to change, many would pursue legal action.

45. The responsibilities introduced by the legislation on ‘Duty of Candour’ require healthcare providers to investigate and learn from incidents where patients have been harmed as an unintended consequence of treatment. However, we find in many cases that there is only piecemeal compliance with this duty, and unfortunately the learning does not often follow through, with the same issues repeatedly arising.

46. Sir Robert Francis QC has recently emphasised this point in his statement of support of Getting It Right First Time and NHSR’s best practice guide ‘Learning From Litigation Claims’ published in May 2021:

“So many victims of medical accidents I have met wanted, but were denied, honest explanations, appropriate apologies, and timely support for their needs. They would have welcomed being involved in working out how their experience could be used to avoid others suffering as they had. Many such victims would have been satisfied with being treated with respect in this way and would not have gone on to sue for damages.”[13]

47. The most costly claims to the NHS are birth injury claims, where a child requires lifelong care after being left disabled as a consequence of the negligent management of their birth. Last year, we secured a compensation award of over £30 million in such a case, where the errors were of the nature that we have seen repeatedly. If the NHS had been committed to learning from past claims and had improved maternity care as a result, life-changing harm could have been avoided on that day, along with a significant cost to the NHS. There needs to be more vigorous auditing of untoward incidents, complaints and litigation to ensure that the duty of candour is being complied with and that lessons are being learned.

48. Steps need to be taken to identify risks that patients will be injured within the system and steps must be taken to address these risks. For instance, the current midwife shortage is an issue that requires urgent attention. As recently stated by the Chief Executive of the Royal College of Midwives, the number of midwives leaving the NHS is suggestive of a “midwife exodus, which will leave already-struggling services on their knees”[14]. Attention needs to be focused on addressing urgent issues such as this which are likely to cause injuries to patients rather than on focus on reform of the legal process that would be rendered unnecessary if  improvement of NHS services occurs.

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?

49. ‘Blame Culture’ is not a result of claimants bringing litigation; it is due to the culture of organisations within the NHS which sometime lacks fairness, openness and learning and where staff are not given the necessary support to encourage them to be open about their mistakes.  Claimants and claimant solicitors have no agency or control over these factors.

50. Most claimants want to see a speedy and just resolution of their claim.  Many claimants are willing to engage in early alternative dispute resolution through mediation and other means to achieve this.

51. Unfortunately, we often find that the defendant will decline to enter into discussions about settlement until after proceedings are issued and well into the court process, even when they later agree to settle the case. This prolongs the adversarial stage of the litigation, when a more conciliatory approach could speed up resolution, identify what has gone on to promote learning from the event, reducing costs and addressing future risks.

52. We find that defendants will deny liability based on a defensive approach to the litigation. This means that even where they may admit breach of duty in a low value claim, they will deny causation and refuse to enter into negotiations about settlement.  A more pragmatic and commercially minded approach might be to settle a low value claim where breach of duty is admitted at an early stage in the process, when there has been less cost incurred by all parties.

53. Defendants may also seek to adopt a ‘tactical’ approach, by denying liability and then using the threat of “litigation risk” as leverage to encourage a claimant to accept a low offer of settlement. This is frequently a false economy as it serves to prolong the case driving up legal costs to persuade the defendant to a more reasonable position.

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?

54. Clinical negligence does not provide non-financial remedies. It is therefore an very different and separate process to an HSIB report which can help in providing the family with an explanation of the cause of  the injuries.

55. Overall, our experience of HSIB investigations has been positive. In cases where HSIB investigations have taken place, we have found that the reports have assisted in looking objectively at what went wrong and that HSIB look at the care provided holistically and involve the family in the process.

56. However, we have found that in cases where HSIB reports have found that failings in care took place, Trusts are still reluctant to engage with the litigation process with a view to settlement.   To save litigation costs it is essential for Trusts to make admissions at an early stage and advise the family to obtain independent legal advice. If  Trusts were to engage with the family with a view to undertaking early ADR this would save substantial costs. Early ADR could include an offer to sit down with family and their legal representative. Trusts should be encouraged to provide an apology and =an offer of compensation to the family. This should be offered as soon as the HSIB report has been received and the family are ready to engage to save them waiting for answers.

57. To improve transparency and patient safety, the findings of HSIB should be made public, subject to anonymity of patients and families and with consent.

58. HSIB investigations could be extended beyond birth injuries and neurological injuries.

What legislative changes would be required to support these changes?

59. A centralised body should be put in place to ensure that NHS Trusts are  learning and following up on shortcomings identified. Those patients whose poor treatment has prompted such change should, if they wish, be kept informed of this.

60. NHS Trusts, or NHS England as a whole, needs to have a more efficient system for the keeping and collating of medical records and other patient documentation. Defendants should have to make it clear when proposing mediation/ADR whether they have authority to make offers of settlement and, if they do not, they should specify what they hope to achieve through the process (e.g. whether there are particular factual issues they hope to resolve or narrow). If they do not intend to make offers then the disbursements of ADR (e.g. a mediator) should be met by the proposing party.

61. The Early Notification Scheme must allow patients or their families (or their legal representatives) to directly participate to ensure that their experiences are taken into account. This will improve transparency and promote greater learning.

62. Some change required is perceptive, rather than purely legislative. There is relatively little public understanding of both the purpose and the practicalities of the legal process. This ignorance extends into the medical profession as well. If doctors are unduly terrified of a claim’s impact on their careers, this is based on a misconception. The reality is that clinical negligence litigation is focused on redress to the patient and is not retribution against the tortfeasor. Greater education to the medical profession on the different legal processes (civil claims, inquests, GMC proceedings etc) would likely go some way towards mollifying the culture of fear and blame.

63. Additionally, defendants must appreciate that many claimants in clinical negligence cases are bringing the case not for financial gain but because they felt badly let down by an intimidating and opaque system.

Oct 2021

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