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Health sec calls time on ‘litigation culture’

Fast-track compensation must pay out the right amount for babies injured by the NHS, lawyers warn

17 October 2016

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A consultation on a new ‘rapid resolution and redress’ (RRR) scheme aimed at improving the safety of NHS maternity care and ending the ‘litigation culture’ has been announced by the government.

Claims against NHS maternity units for medical negligence have tripled over the last decade, rising from £354m to £990m, according to official figures quoted in The Telegraph today.

The paper has reported that approximately 1,100 claims were lodged last year, with the amount spent in settlement reaching £509m, a 30 per cent rise. Spending on claimants’ legal costs also rose by 43 per cent to £418m, according to the NHS Litigation Authority.

Launching his action plan today, the secretary of state for health, Jeremy Hunt, said transparency would be improved by ending the ‘blame culture’ within the health service. The government is to consult on how to change the ‘litigation culture’, with the Department of Health admitting that current practices can ‘prevent openness’.

Under RRR, claims will be assessed by independent assessors, with their findings presented to a panel of legal and medical experts who will decide whether compensation is to be awarded.

The government expects the scheme to learn from more than 500 incidents a year. In cases where harm was avoidable the RRR would provide compensation without families needing to launch a claim, which can last as long as 11.5 years on average.

In a speech to the Royal College of Obstetrics and Gynaecologists, the health secretary said: ‘Our NHS maternity staff do a fantastic job under huge pressure. But even though we have made much progress, our stillbirth rates are still amongst the highest in Western Europe and many on the frontline say there is still too much of a blame culture when things go wrong – often caused by fear of litigation or worry about damage to reputation and careers.

‘These comprehensive measures will give practical support to help trusts improve their approach to safety – and help to foster an open and transparent culture so that the courts become a last resort, not an automatic first step. By learning from proven methods in countries like Sweden we hope to achieve a dramatic reduction in the number of tragedies where babies are lost or injured for life.’

Commenting on the announcement, Helen Vernon, chief executive of the NHSLA, said: ‘Learning from what goes wrong is the key to reducing the growing costs of claims. We have been working closely with the [DoH] to develop a new approach to compensating babies who suffer brain injury at birth so that learning can be shared quickly.

‘We therefore wholeheartedly support the announcement of a consultation on proposals for rapid resolution and redress which will deliver support to families from the start without the need to begin a formal legal process.’

However, claimant lawyers have warned that any fast-track system must also pay out the right amount of compensation for babies injured by clinical negligence.

Reacting to the news, Neil Sugarman, president of the Association of Personal Injury Lawyers, said: ‘Compensation for these catastrophic injuries has a very clear purpose and, in these cases in particular, it is critical that the right amount of compensation is made available to injured children to ensure they receive the care they desperately need.

‘We have yet to see the details of the consultation, but we will be reminding the DoH that children suffering cerebral palsy and brain damage at birth need round-the-clock medical care, specialist equipment, and support for the rest of their lives.

‘The fact that the number of claims for these injuries has barely changed in the past ten years is a national scandal, and we welcome any attempt to improve this situation and the legal process which families have to navigate. But not at any price.’

Meanwhile, Andy Cullwick, head of marketing at First4Lawyers, said that despite the new initiative, parents should still seek legal advice before accepting compensation for damages to ensure a ‘true and fair settlement is reached for the future care of their child’.

‘It is great to see that the DoH is trying to be more open to resolve cases in a quicker timeframe. This should not only help improve the health service moving forward but reduce the suffering caused to families involved,’ he said. ‘It is shocking that families have to wait up to 11 years to resolve cases, and perhaps this is the real reason that the cost of medical negligence is rising so much.’

Earlier this month, the Mail on Sunday accused ‘vulture lawyers’ of bleeding the NHS of £418m, as ‘grasping law firms’ recorded a record year after pulling in ‘grossly inflated fees’ from NHS blunders. The story followed news that the introduction of fixed costs for clinical negligence cases would not be implemented on 1 October as previously planned.

However, today’s release of the Civil Procedure Rules Committee minutes from 8 July suggest a ‘change in policy’ at the DoH, which now intends to consult on limiting fixed costs in claims up to £25,000, approximately 60 per cent of clinical negligence cases. The date of publication of the consultation is unknown.

Commenting on the news, Nina Ali, a clinical negligence partner at Hodge Jones & Allen, said: ‘At first glance this is of course a welcome change of policy. However, unless there is a proper and effective consultation and ultimately acceptance that there are a number of case types that must be made exceptions of, this change of policy and playing with numbers is meaningless.

‘In order to ensure that some semblance of justice in the absence of legal aid for any case other than a birth injury prevails, exceptions must include fatal cases, cases with human rights issues, and cases that concern the vulnerable in society such as the elderly and people with learning disabilities.’

John van der Luit-Drummond is deputy editor at Solicitors Journal

john.vanderluit@solicitorsjournal.co.uk | @JvdLD

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NHS Litigation Authority rapid resolution and redress Department of Health Association of Personal Injury Lawyers