By Peter Morgan, Senior Underwriter at Legal Futures Associate Temple Legal Protection 
With several challenges currently facing the world of clinical negligence, Temple recently invited a number of leading clinical negligence practitioners to the Royal Society of Arts in London, to discuss some of the hot topics within the industry and how they could be addressed. Myself and my colleague, Philip Pipkin, had a stimulating day in their company.
Among the big discussion points on the table were the effects the pandemic has had on new and existing work, the likely impact of fixed costs on lower value clinical negligence claims and the benefits of considering Alternative Dispute Resolution (ADR).
The first item on the agenda was of course, the Coronavirus pandemic.
With the pandemic soon to be approaching the end of its second year, it is yet to be clear as to what Covid-19’s impact will be on clinical negligence cases. Will Defendants rely on Covid-19 as a blanket defence for any delays to treatment? Maybe the Courts will take a more sympathetic view on matters due to the pressure placed on the NHS during the initial months; and of course, the Christmas period. Cases where the alleged negligence took place during the pandemic have only just started to enter the protocol stage, so the type of response we will receive remains to be seen.
What we have seen during this time are delays in obtaining disclosure and availability of medical experts. These delays will have a knock-on effect when arranging conferences and obtaining responses to Part 35 questions or defence’s. They have already had an impact on the Court system, causing backlogs for important issues like obtaining a date for trial; this can now stretch towards the latter end of 2022. Of course, the pressure of these delays is reduced by the Covid-19 Clinical Negligence Protocol; but this is only available to law firms who have a SCIL or AvMA member within its team.
Overcoming these delays is not something that can be fixed by simply making an application in the first instance – though this approach may be seen as being against the spirit of the protocol. Especially as delays in obtaining vital documentation are known throughout the industry. Fortunately, the difficulties in obtaining appointments with medical experts has been alleviated slightly by experts now beginning to see Claimants face-to-face again.
Firms are beginning to see enquiries for cases where the Claimant has contracted Covid-19 whilst undertaking treatment or suffering side effects of the vaccine. Cases that, in the opinion of many, will be difficult to pursue. A discussion with neurosurgeons regarding these cases confirmed delays could not be afforded as they needed treatment to commence as soon as reasonably possible.
Hospitals throughout London dedicated different resources to fighting the pandemic. It was felt it would be a minefield trying to establish the prevailing standard at each trust, what policies and procedures were in place and then establishing whether they were adequate.
Unfortunately, it is still too early to tell what the Defendant’s approach will be, as we are still only seeing cases from 2019. But it is suspected that any case involving Covid-19 is likely to be defended on causation, a belief shared by all attendees.
The discussion then moved on to alternative dispute resolution (ADR)
There has been an increase in recommendations for ADR, more specifically mediation, and it was noted that Defendants have been encouraging the use of this.
ADR can provide a lot of advantages when used in the right circumstances, however, it is not always the correct choice. Practitioners have found that if mediation is used at the wrong stage, the parties may be no closer to settlement and will clearly have wasted time and money that could have been better spent.
This is because the evidence available to the parties may not be enough for ADR to be effective. If the Defendants were more open to making admissions of liability instead of dragging their heels on cases with strong prospects, ADR could be utilised sooner for the remaining issues.
On a number occasions a simple telephone conversation with the other side can resolve several issues that may be sticking points within a future mediation. Others have found that even if the mediation is unsuccessful, it may result in a settlement offer shortly after. It can also be a useful tool in getting face-to-face with the Defendant and addressing some of the larger issues which are proving difficult to resolve.
Whether ADR is the correct course of action is a decision best made on a case-by-case basis. However, the increase in Defendants requesting use of this, despite the outcome being more favourable for the Claimant, is encouraging and shows a pragmatic approach to settling cases earlier instead of potentially drawing out unnecessary costs.
Last, but by no means least, is fixed costs. This is still very much on the table and continues to be debated, due to the complexity of implementing it. Practitioners have argued that there is more to a case than placing fixed costs on a specific value. Just one example of this would be two cerebral palsy cases where one baby sadly dies, but the other survives. The complex issues of the case may be the same, but the value will be significantly different and may fall under fixed costs.
How does this provide the Claimant with access to justice? Does this mean that the appointed legal representative will need to take money from damages to make up the shortfall in costs? Or will the firm pass fixed costs cases to less experienced members of the team despite the complexity of the case?
It is believed that there will only be small gains in restricting the legal fees, the most recent report on the NHS budget has shown the compensation and legal fees have already been dropping. A lot is yet to be considered and hopefully this will be taken into consideration when drafting the proposals. How the industry responds to these remains to be seen.
Get more insights, get involved – join the debate
Our roundtable meetings will continue to take place during 2022, with the next one being held in Newcastle. If you would like to attend this event or want more insights on of the discussion points above or how working with Temple Legal Protection can benefit both your clients and your law firm, please contact our Senior Underwriter, Peter Morgan on 01482 514800 or email email@example.com