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It’s Negligent, Clinically?

It seems like an age has passed since Master Leonard sat in the Senior Courts Cost Office in the case of Ms Emily Nokes -v- Heart of England Foundation NHS Trust (2015) which concerned an ATE Insurance policy for a Clinical Negligence claim obtained by the Claimant from Temple Legal Protection following the Jackson reforms in April 2013.

The policy insured the cost of experts’ reports on causation and liability and so was recoverable from the defendant. (Section 2 of the Recoverability of Costs Insurance Premiums in Clinical Negligence Proceedings Regulations 2013 No. 92 of 2013). The premium specifically allocated to cover the cost of these reports was £5,680 plus Insurance Premium Tax for an indemnity of £10,000. In addition it was "self-insuring” ie. there was no premium to pay if there was a claim on the policy. The question the court had to answer was whether the policy premium which the defendant was liable to pay was reasonable and proportionate.

This is an important benchmark decision on the level of premiums for this type of cover and Claimants can now pursue these actions with the comfort that if the claim is successful then they should be able to recover a substantial policy premium if they obtain an early medical report on liability and/or causation. It should be noted that although the Defendant’s challenged the level of premium applied aggressively, they did not offer any substantial evidence to support their contentions that the level of premium was unreasonable and/or disproportionate.

But soon after this decision was made, came further complaints from the NHS Litigation Authority and Government that the level of costs received by a successful Claimant, were grossly excessive and generally far outweigh the value of the average claim. The Claimant body will continue to argue that medical negligence cases are generally complex and require specialist knowledge to enable the injured party to receive the compensation they may be entitled to. Claimant’s face a long and hard battle ahead as the NHS Litigation Authority have a reputation for being obstinate with a confrontational approach to claims, which means that the Claimant’s lawyers have to work hard to make progress with these claims.

So what can be done about this situation? Well it’s all too obvious isn’t it; fixed costs and a portal should be introduced for Clinical Negligence claims to ensure that the greedy lawyers do not continue to "milk the system”. The government has now confirmed that it will legislate on fixed costs for clinical negligence claims worth up to £100,000. The health minister Ben Gummer peddles the view that some lawyers have ‘unscrupulously’ used patient claims to load ‘grossly excessive’ costs on to the NHS and charge far more than the patient receives in compensation. Costs are currently assessed by a Judge to decide whether they are reasonable (some costs are judicially assessed twice if subject to cost budgeting and detailed assessment).

The Government, either (a); think they know better than the Judges, or (b); they want to pay unreasonably low costs. But it gets even better as the High Court has now acceded to Lord Justice Jackson’s (yes him again) request for a temporary break in costs budgeting for all London clinical negligence cases with hearings listed for between October 2015 and January 2016.

Perhaps a portal system would be of benefit to all concerned at a time when the judicial system creaks ever more loudly under the strain of budget cuts and austerity. It is all to obvious to those who work in this arena that a portal system, with time limits akin to the other portals, would see the vast majority of claims fall out. What if the time periods allowed, from first notification to the point when a decision on liability is due was simply increased, to give the NHSLA sufficient time to investigate claims properly and enable them to consider such claims properly but also with a commercial view?

If an admission of liability were given early enough, the claim could stay within the portal and costs significantly reduced. If contested, then costs on the standard basis should apply? Would this also not give the NHSLA more of an incentive to make an earlier admission and save costs?

Either way, a truly dreadful state of affairs.

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