News Category 3
Mcgeer v Macintosh: Lethal Weapon 6? - Charles Feeney, Complete Counsel
20/04/17. In McGeer v Macintosh (2017 EWCA Civ.79), the Defendant’s appeals both against primary liability and the assessment of contributory negligence risen from a road traffic accident involving an HGV and a cyclist were both dismissed. Having rejected the Defendant’s appeal on primary liability, Lord Justice Treacy considered the question of apportionment. Notwithstanding that the Claimant had cycled to the nearside of the Defendants’ vehicle when it had been indicating left, the Court of Appeal upheld a finding of 70% liability on the Defendant. In paragraph 28 of the Judgment, Lord Justice Treacy stated,
“I consider that whilst the Judge had found that both parties were at fault in the respects identified by the Judge, it was appropriate for him to take into account the causative potency of the HGV, giving the likelihood of very serious injury to a cyclist in the event of a collision. Although Mr Herbert sought to discount this on the basis of the low speed of the HGV, I consider that the Judge was entitled to find that it was potentially a very dangerous machine. Its size and bulk were such that in the event of a collision it constituted a very serious danger to a person in the position of the Claimant. I therefore see no basis for interfering with the Judge’s assessment, and, for the reasons given, would dismiss this aspect of the appeal.”...
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Comment on the Consultation, Introducing Fixed Recoverable Costs in Lower Value Clinical Negligence Claims - Agata Usewicz, Hodge Jones & Allen
24/04/17. News that the Department of Health’s long-awaited consultation Introducing Fixed Recoverable Costs in Lower Value Clinical Negligence Claims will close on 2 May this year was met with considerable frustration by those working in the field of clinical negligence, not least because the consultation will close before the National Audit Office’s (NAO) investigation into the operations and efficiencies of NHS Resolution (formerly known as the NHSLA) will report its findings.
Whilst it is welcome news that the proposed cap is set at £25,000, rather than the £250,000 feared, there still remains a very real risk that vulnerable and already disadvantaged groups of people will simply not be able to access justice.
I was disappointed to see how few proposed exemptions to fixed recoverable costs there are in the consultation. Whilst importantly child fatalities are exempt, it is illogical not to extend this exemption to all types of fatal claim as well as claims relating to still-births, claimants lacking mental or legal capacity and claims where the client has a very short life expectancy as a result of negligence.
This is because cases involving vulnerable adults invariably require more work, often for modest damages. Take an already immobile patient with dementia who, as a result of poor risk assessment and care while in hospital, suffers a fall and fractures a hip. Such a claim is likely to be limited in value to general damages and is unlikely to be worth more than £25,000. Yet in order for the claim to succeed, the claimant, who would be unable to provide their own witness evidence, would need a litigation friend, expert medical evidence and a capacity report, plus court approval requiring the input of counsel.
Likewise, at present we act for several clients who do not speak English and as a result we need to work alongside translators. Such work would simply not be viable under the proposed fixed fee.
For the sake of patient safety, it is welcome that the consultation states that it wants to ensure that any lessons from adverse incidents are fed back to the frontline as soon as possible. It is disappointing however, that missing from the consultation is any mention of “culture change” in relation to the NHS and NHSLA. Whilst the NHSLA has recently changed its name to NHS Resolution in an effort to signal a change of approach, I see no hard evidence in the consultation that the organisation’s ‘deny, delay and defend’ culture is going to be tackled.
Instead, we’re reminded that amongst other things, the NHS introduced a Duty of Candour in 2014 to promote a focus on learning lessons from, rather than repeating, mistakes. The Department of Health has also commissioned new research into the implementation of the policies it has introduced to improve the culture of openness and transparency into the NHS, but this will not report until 2019 at the earliest. In the meantime, their solution is the introduction of fixed recoverable costs for lower value claims.
This focus on claimant lawyers as a solution for all the NHS’s woes is misguided and disproportionate and diverts ministers from the urgent need to ensure that the NHS and NHS Resolution get their own houses in order.
Any claimant medical negligence practitioner will be able to provide a plethora of examples about how the behaviour of NHS Resolution has driven up the cost of claims to the NHS. Our experience at Hodge Jones & Allen is that legal bills are often massively increased as a result of NHS Resolution’s failure to admit liability at an early stage and that much of the work carried out by a claimant’s solicitors becomes necessary solely due to the manner in which the defendant conducts its case.
I have had a client wait for over a year for a letter of response, only to receive a one page reply which did not deal with the allegations made. In another case, where liability was admitted in full and a negotiated settlement reached, the trust involved still did not make a written apology despite repeated requests made in writing. I fail to see how capping fees will help in either scenario when the only incentive in the proposals seems to be a minor discount in fees if early admissions of liability are made. In my view, if any aspect of liability is denied, or if the Defendant does not comply with the pre-action protocol, or fails, as is so often the case, to provide timely and full disclosure, then those cases should come straight out of fixed recoverable costs.
For too long the government has been scapegoating claimant lawyers, laying the blame for the escalating cost of NHS litigation on them whilst ignoring the crucial role NHS Resolution has in the process. With the timing of this consultation coming well in advance of the NAO report scheduled for June, it appears that lawyers will continue to be targeted, with inconvenient truths about the role of the NHS Resolution ignored and left unchallenged.
Agata Usewicz is a partner and head of the clinical negligence team at London law firm Hodge Jones & Allen.
Image ©iStockphoto.com/sodafish
Summary of Recent Cases, April 2017
15/04/17. Here is a summary of the recent notable court cases over the past month. You can also receive these for free by registering for our PI Brief Update newsletter. Just select "Free Newsletter" from the menu at the top of this page and fill in your email address.
Summary of Recent Cases - Substantive Law
Darnley v Croydon Health Services NHS Trust [2017] EWCA Civ 151
A majority of the Court of Appeal (McCombe LJ dissenting) concluded that there was no general duty for receptionists at Accident & Emergency units to keep patients informed about likely waiting times.
The appellant had suffered a head trauma and on arrival at A&E he was (incorrectly) advised that he would be seen in 4-5 hours...
Image ©iStockphoto.com/spxChrome
Bolam Under Attack: Muller v Kings College Hospital and Webster v Burton Hospitals - David Sanderson, 12 King's Bench Walk
13/04/17. Two judgments handed down this month explore the boundaries of the Bolam principle and limit its application. In the first, Kerr J doubted that Bolam was apposite where the court is concerned, not with a choice between two courses of treatment, but instead with a missed diagnosis. In the second, the Court of Appeal rejected the judge’s application of Bolam, in circumstances where a patient had been entitled to information about risks before deciding between treatment options.
In Muller v Kings College Hospital [2017] EWHC 128 (QB), the claimant had a wound on the sole of his foot. In November 2011 a histopathologist (Dr G) examined a biopsy and diagnosed a non-malignant ulcer. The wound failed to heal and in July 2012 the claimant underwent surgery in the form of a narrow local excision. On this occasion a biopsy revealed a malignant melanoma, necessitating a second extensive operation to remove the tumour. Further investigations revealed that the cancer had spread to the lymph nodes. When the November 2011 biopsy was reviewed, signs of malignant melanoma were found. At trial the judge had to determine whether Dr G’s failure to diagnose the melanoma in November 2011 was a breach of her duty to exercise reasonable skill and care.
The defendant trust submitted that the...
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Critical Time Ahead for PI Firms - Lesley Graves, Citadel Law
12/04/17. With reform firmly on the horizon, firms need to take a critical look at the profitability of their personal injury work and consider a radical shake up, advises Lesley Graves
On 23 February 2017 thegovernment published its detailed response to the recent Ministry of Justice (MoJ) consultation Reforming the Soft Tissue Injury (‘whiplash’) Claims Process. It is looking to introduce the reforms on 1 October 2018, meaning personal injury (PI) firms have a short window to make some business critical choices that can help them navigate their future.
Any firm dealing in claimant PI must have its future strategy under the microscope. The operational and financial pressure has never been more acute and the relentless challenges to the profitability of carrying out PI work remain an ongoing concern.
When Lord Justice Jackson’s April 2013 reforms landed it was thought that the sky would fall in and some law firm owners and commentators said, “Get big, get niche or get out.”
Well law firms of all shapes and sizes have struggled since, whether they are big and niche, small and niche or simply have PI as part of a wider service firm. There is no longer easy money in PI.
The insurance industry continues to play hardball with claimant law firms, drawing out negotiations on claims resolution and costs and, exposing law firms who systematically overcharge and inflate costs by challenging their bills with SRA scrutiny as a consequence.
There are many unforeseen “unknown unknowns” that have also come into play, namely retainer challenges on transfer of cases between law firms, approved costs budgets being battered by proportionality and a crippling hike in court fees to name but a few.
“New market entrants” is not too far adrift of being a dirty word and many who set out their stalls to be “industry firsts” have found that the spotlight on their demise is extremely public and unrelenting. Plus, we see creditors “parked”, phoenix law firms and owners allowed to practice unfettered by past poor trading history and an unpalatable unraveling inevitable.
To stay or exit?
The choices for many PI law firms are stark. So, what areas should law firms be looking at to avoid financial, regulatory or public pain?
The “stay” or “exit” options are broadly as follows:
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Trade on in a leaner and more profitable way
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Acquire PI caseloads/teams/firms
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Be acquired
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Trade out and run your PI caseload down
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Disposal of PI by sale at best value
The key issues
Whether you ultimately decide to stay or exit, your starting point is a consideration of the following:
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Reduce debt
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Increase cash-flow
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Reduce WIP and disbursement lock up
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Have you diversified in recent years and added serious injury, clinical negligence, occupational disease/noise induced hearing loss or holiday sickness claims to your suite of services in PI? How’s that working out for you?
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Have you experienced a hardening of attitude from insurers? Has this resulted in thinner profit margins? WIP and capital lock up? Negative impact on cash flow and profitability? If so, do you understand why the insurance sector has hit your firm and can you change that?
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Are your case acquisition costs stacking up?
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Are your cases being run expertly?
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Do you know if you are running cases with no prospects?
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Is your WIP real?
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Are you profitable?
How good are you?
How truly expert are you? In terms of what “good” looks like, what do you really know about your business and how you fair against your peers in relation to your:
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Case management system – utilisation and potential for development?
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Governance and oversight regarding fee earner technical capability, financial performance and risk management?
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WIP valuation, financial forecasting and cash collection?
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Management information (MI)?
Understanding your future in PI
It’s critical to take a truthful look at whether your PI work is profitable and what it could look like with reform firmly on the horizon.
Let’s face it, it’s only going to get worse - not better - so if this work is not paying its way, cutting your losses and getting out may be the best decision you make. Alternatively giving it a radical shake up may be your best chance at a future.
Ensuring your PI work is as lean and profitable as possible will make you agile to react to the opportunities and challenges ahead, be that to stay or exit.
Any firm wanting to achieve this should commission an independent review of their PI work to identify areas that are capable of improvement and can enhance profitability now, as well as setting you in good stead to make sounder business decisions in the future.
If you are embarking upon a sale or being acquired, carrying out independent expert due diligence before going to market ensures your PI caseload and WIP valuation is maximised. This exercise can make a deal look far more attractive and increase its value.
Just do nothing
There is of course a final option and that is to do nothing. But surely any firm doing nothing will inevitably fail? So, if your firm is doing nothing, perhaps read this article again…
Lesley Gravesis the founder and managing director ofpersonal injury consulting law firm, Citadel Law.
Image ©iStockphoto.com/P_Wei
More Articles...
- How Will the New Motor Insurers Bureau Agreements Affect Motor Claims in the UK? - Michelle Reilly, Hill Dickinson LLP
- UK Personal Injury Reform and New Ogden Rates Go Into Law - Jacob Maslow, LegalScoops.com
- Consent to Medical Treatment: Must the Surgeon Advise Who Will Operate? Can the Patient Choose? - Paul Sankey, Foot Anstey LLP
- Editorial: Seeing Negatives in the Discount Rate - Aidan Ellis, Temple Garden Chambers
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