Clinical negligence litigation frequently drives better medical practice in private and NHS organisations by identifying systemic failings and ensuring practitioners undergo training or sanctions are taken if necessary. The recent proposals to introduce fixed fees threaten access to justice for patients with lower value claims and may well prevent many important cases being brought. This raises real concerns for patient safety in the future.
The Government’s proposals to impose fixed costs in clinical negligence cases announced by the Department of Health this summer could leave many patients without the legal representation they need to pursue claims against the NHS and private health organisations.
Patients with complex cases under a value of £250,000 (that covers many cases) are likely to find that specialist lawyers are unable to run claims properly. Inevitably this will mean many cases will not be brought at all, resulting in diminished scrutiny of medical practice. Litigation is not just about compensation that helps to rebuild lives, it also holds institutions accountable and can be a force for change. This view is shared by many independent medical experts with whom we work, who also strive to improve standards.
There are many examples of this. In one of my cases a 69 year old patient became dehydrated and developed kidney failure. The subsequent investigative process and the litigation following this event meant that hospital systems were reviewed and new protocols and systems introduced to prevent such events in the future.
On occasion, the litigation process uncovers the continual poor practice of specific individuals, such as surgeons. This may then be referred to the GMC or action taken by the Trust or organisation that employs him/her. Whilst the General Medical Council is responsible for ensuring doctors’ fitness to practice, I question whether without the litigation process these ‘rogue’ practitioners would so often be identified, let alone sanctioned.
Where deaths occur, it can be lawyers who push for inquests to investigate what happened. My team have advised on cases where without intervention the inquest would not have happened at all and yet the outcome was a finding of neglect by the Coroner.
Legal representation at inquests would however also be in jeopardy under the new proposals. In most circumstances the cost of representation in these important cases are recoverable where there is a successful clinical negligence claim. This is likely to change with fixed fees, curtailing solicitors from obtaining crucial evidence for a claim in addition to being part of the inquiry into the cause of a death. In those circumstances, families and friends of the deceased could be deprived of much needed support as well as help changing systems, which is primarily what families want.
In one of our most recent cases concerning the death of a baby, the inquest highlighted significant failings by the hospital and in the training of junior midwives. As a result the coroner said that he would meet with the chief executive of the hospital to ensure safe procedures were being adhered to and would be writing to the body responsible for training student midwives to consider whether that hospital was an appropriate place to train students given the series of failings identified.
In a recent inquest we acted on, examining the death of an elderly man, the investigation found that he died as a result of a stroke which was caused by a mistake in inserting feeding tubes into the patient’s neck following an operation. The Coroner identified major problems with the supervision of junior doctors in the hospital which is now seeking to make the necessary changes.
Cases affected would include those involving psychiatric patients, children, the elderly and disabled whose cases frequently are complex and challenging even though they are considered to be of low value. These are areas where we will see far less opportunities for lawyers and the judiciary to successfully intervene to protect patients, especially the vulnerable.
Without legal redress I am very concerned that poor practice will not be addressed. Perversely, costs could increase as specialist solicitors screen most cases out, identifying when there is legal negligence as opposed to a complaint. The medical profession could be swamped by complaints that will have to be investigated or pursued by less specialist lawyers.
At present there is limited detail about the proposals, a more in-depth explanation expected in October 2015. It is hoped that the Government will take into account the role of litigation in driving changes in training, policy and guidance to practitioners ensuring best practice. Without access to justice patients will ultimately suffer.