Written evidence submitted by Julia Hurlbut (NLR0043)

This response is by Julia Hurlbut, Solicitor.  I work for a law firm. I don’t mention the name at this current time as it is pending approval of management.  I have specialised in Clinical Negligence Litigation for over 25 years and for the past 4 years I have headed up a specialist Clinical Negligence department.  The department works exclusively in Clinical Negligence claims on behalf of patientsThis response has been compiled from my own experience and from canvassing my colleagues in the department. I am a member of AvMA’s specialist Clinical Negligence panel and my employer is also a member of SCIL.

NHS litigation reform: Terms of Reference

 

 

My understanding is that litigation costs (which I take to include legal costs and damages) is a very small percentage of the NHS budget. 

 

Large value claims which involve 24-hour care packages are paid as Periodical Payments which last only as long as the patient/client survives so it’s not a case that the NHS are paying out multi-millions in lump sum payments and avoids over-compensation.  

 

Statistics show that legal costs have come down in recent years (NHSR Annual Reports of 2020 and 2021).  A less adversarial approach and the ability of the Defendant Trusts/NHSR/Solicitors to respond to claims without delay would bring the cost down further.

 

In many of the cases we settle, we have been faced with delay in response to Letters of Claim and denial which means we end up having to expend more costs which we wouldn’t have done otherwise.   

 

Defendant solicitors often point out that their costs are lower but what is not mentioned (apart from the fact Claimants must do more work to prove the claim) is that they get paid for every case they deal with whereas Claimant solicitors don’t – we save the NHS money because we filter out unmeritorious claims.  As they are funded by way of ‘no win, no fee’ agreements that means there is necessarily a significant portion of work we must do for which we don’t get paid.

 

 

 

I cannot see a correlation between compensating an injured patient and promoting learning. What needs to change is culture in the NHS – so that doctors and nurses feel that they can readily admit to mistakes without repercussions but rather see it as an opportunity for learning and changing things for the better.

 

 

Cases need to be investigated before being brought.  That is in the interests of the NHS as many cases we investigate don’t get pursued due to lack of supportive evidence.  The process would be assisted with earlier provision of medical records (and cost would be reduced if produced electronically).  We then carefully scrutinise the records and decide whether the facts potentially support a case.  If not, it does not get pursued.  If so, we then obtain  independent medical expert opinion in the relevant specialism to advise on breach of duty of care and causation.  If supportive, then we produce a Letter of Notification to put the Trust on notice so that they have the option of investigating the case pending our Letter of Claim which will set out in the fullest detail, the allegations of negligence and causation.  If the case is of a minor injury, then we will include quantum information and if possible, serve an offer to settle.  The Trust then have 4 months to respond.  Often, that timescale is exceeded.  Is there a way that processes for investigating claims brought can be sped up on the NHS side?  What is the level of independent expert opinion sought by the NHS in deciding whether to settle a claim or defend it? 

 

 

A less adversarial approach.  We each want the same thing – to resolve the case.  Less obstructiveness.  The Covid 19 Protocol has been beneficial in improving collaboration.  This is patchy in my experience.  I have come across Defendant solicitors you can pick up the phone to and have a productive conversation and resolve matters.  I have come across Defendant solicitors who don’t respond to correspondence and when they do it’s not constructive which causes stress to our clients who feel they are being punished for bringing a claim.  It is  a source of frustration when you present a case which is met by denial without properly addressing the issues.

 

 

There ought to be a wide-spread culture shift – for all Trusts to comply with the statutory duty of candour.  Patients who are harmed ought to be given an apology and an explanation.  To be kept in the loop in investigations along with all other interested parties rather than being on the outside.  Patients should not be deceived by omission of information including the need to obtain independent legal advice so that they can make a fully informed decision in accordance with their legal rights as every citizen in this country enjoys under the established civil law on compensation for negligence.

 

 

Fixed Recoverable costs work in litigation which is more process driven – where negligence and causation is clear particularly in more simple personal injury.  Clinical negligence claims are professional negligence claims which require independent expert opinion on the standard of care and causation.  Complexity is not necessarily correlated with the quantum value.  Negligence and patients come in so many varieties.  Unlike other personal injury claims patients already have underlying health issues which can cause difficulty in establishing causation and usually the harm caused is related to underlying health problems which the patient has received the treatment in question for.

 

To set a figure is not workable.  There is a grave risk that patients will be denied access to justice as it would simply not be economically viable for specialist solicitors to undertake.  Those with lower value claims but with incalculable human cost would be denied access to justice such as in still birth injury cases and cases involving injury or death of the elderly/other vulnerable persons.  There is also a risk that with a lack of specialist legal representation, there will be a growth in litigants in person whose claims would not have otherwise been pursued through lack of merit.  There is also a risk that claims management companies will take on such cases and produce more Letters of Claim without proper investigation (given the cost involved).  That would surely increase the cost to the NHS?

 

 

This is a question to be addressed by the medical profession.  However, it seems to me that what is needed is education of the medical establishment from the grassroots up.  In any profession, there are standards which must be adhered to for the protection of the public.  As a solicitor, it is within our DNA to inform a client as soon as a mistake is made and notify the insurers.  It is accepted that humans make errors, and the important thing is to find what happened and why, in order to reduce the risk of a reoccurrence.  The medical profession should be no different.

 

 

This is fundamental.  Many of our clients are keen that no one must go through what they have suffered.

 

 

See above.  It’s not the claims system but rather a culture change within the medical establishment.  Patient safety is key. That surely is the starting point and the catalyst; not denying or restricting access to justice.  If the former is addressed, the cost of claims will reduce further – specialist solicitors will only pursue claims with merit.

 

 

This is a question for the HSIB.  Also, see above.

 

 

I don’t think legislation is the answer.  There’s probably too much.  We have the statutory duty of candour.  A big problem is that the DHSC is fragmented and complex with so many different institutions within dealing with various aspects of standards.  I think this needs to be simplified and there needs to be joined up thinking and learning.  The remits of bodies can be too narrow which means that aspects which require investigation are not being investigated.

 

Oct 2021

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