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Will fixed costs prevent patient safety lessons from being learnt?

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The Government has recently introduced a consultation to consider the costs that are payable to Claimant's solicitors in clinical negligence claims valued at under £25,000.

Consultation Proposal

The rationale for the reforms is that the costs of bringing claims valued at under £25,000 often outweigh the compensation paid to the claimant. The consultation document implies there is no incentive for the claimant solicitors to settle cases at an earlier stage, when costs are less. The consultation hopes to provide a fixed costs solution without reducing access to justice for claimants.

Amy Greaves, experienced medical negligence solicitor in Shoosmiths Birmingham office said:

“In my experience most clients bring clinical negligence claims because they want answers that haven’t been received through the trust complaint process.

“Whilst compensation may be required by a client to help with their rehabilitation, or assist with any life changing injuries, often this is not the main reason for clients pursing claims. Our clients frequently want to know that lessons have been learnt to improve patient safety for future patients.”

“I see this most often in fatal cases, where a family member of the client has sadly died. Due to how compensation in fatal cases is calculated they can often be valued under £25,000.”

Below, Amy sets out two case examples that settled for less than £25,000 where patient safety was improved due to a clinical negligence claim being pursued.

Case A

Case A concerns the death of an 85-year-old man. He had become unwell at home and was admitted to A&E with vomitting and feeling very weak. He was diagnosed with constipation and dehydration.

He was admitted to a ward later that where he continued to get weaker and increasingly confused. Case A was on the ward for 5 days but did not receive any treatment for dehydration, beyond what he was given in A&E on his first day. His family were becoming increasingly concerned but their concerns were constantly dismissed by ward staff. On day six day, Case A was assessed by a consultant who suspected severe dehydration and placed Case A on a drip to rehydrate him. Unfortunately, this was too late and he died.

An inquest took place where Amy represented the family. At the inquest it was apparent that Case A’s hydration levels were not monitored for the 5 days whilst he was on the ward and this had led to his deterioration and, ultimately, death.

A report provided by the defendant for the inquest confirmed that Case A’s death and the inquest had been a ‘catalyst for change’ on the ward.

Following the inquest it was felt sufficient evidence had been obtained to proceed without expert evidence and allegations were put to the defendant following the inquest. An offer was made to encourage settlement at an early stage.

The claim was denied and the defendant did not engage in settlement discussions. To proceed with the claim an expert had to be instructed. The expert confirmed their agreement with all the allegations put to the defendant and raised further allegations. This was confirmed to the defendant who maintained the denial of liability.

The clients therefore had no alternative but to issue the claim and serve court proceedings. Following proceedings being served, the defendant offered to settle the claim at £500 less than offered by our clients some months before.

Case B

Case B concerned the death of a 9-month-old girl. She was admitted to hospital being generally unwell and having breathing difficulties. It was initially thought she had a blood infection.

Her breathing continued to deteriorate. Her mother raised concerns with the ward staff but these were dismissed. During the evening Case B was given oxygen which slightly improved her condition, however, this was stopped after ten minutes.

Later that evening Case B went into respiratory arrest. She was resuscitated after some time and admitted to ITU. Following investigations in ITU Case B’s parents were advised she had suffered significant brain injury and life-support was withdrawn.

Due to the death, and in light of the inquest, the trust undertook an investigation that identified a number of failings. The majority of these failings were acted on swiftly and rectified by the time of the inquest. The defendant accepted liability before the inquest and therefore the case settled shortly after the inquest and court proceedings did not need to be issued. In conclusion. Amy said: These examples show that cases which concern the death of family members may be at the lower value range of clinical negligence claims but they are so important for clients to get closure and to ensure that changes take place to prevent other patients coming to harm.”

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Disclaimer

This information is for educational purposes only and does not constitute legal advice. It is recommended that specific professional advice is sought before acting on any of the information given. © Shoosmiths LLP 2022

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