You might think that the big, complex clinical negligence claims give rise to the greatest degree of friction between Claimant and Defendant lawyers and their respective clients. In practice both sides generally recognise that where a catastrophic injury arises in complicated medical circumstances, a degree of calm professionalism is the order of the day. Serious consideration is given to all of the evidence and whilst both sides present their case to their respective best advantage, there is an undoubted degree of respect for the opponent’s position. Claims on behalf of children who suffer cerebral palsy due to hypoxia at birth are a good example of long, drawn out and expensive cases but they are usually conducted by experienced practitioners who adopt a measured approach to achieve a conclusion satisfactory to both sides.
Where the real enmity arises is in relation to the “unmeritorious” case. For the Claimant’s solicitor, there is nothing more frustrating than the Defendant seeking to defend the indefensible. Where there is clear independent evidence that treatment has been unacceptable to the medical profession but an NHS Trust or clinician continues to maintain a denial of liability, the suspicion arises that the defendant is deliberately adopting a tactic of running the case in the hope that the Claimant will run out of money, time or patience and throw in the towel or accept a wholly inadequate settlement offer, just to bring the whole sorry business to a conclusion.
When the Defendant concedes the case at the last possible moment at a time when significant legal costs have been incurred and then complains of “greedy” Claimant’s solicitors, lining their own pockets with exorbitant legal cost claims in cases where the compensation has been relatively low, the degree of hostility between the parties increases further. Of course the costs can be high in long drawn out cases, irrespective of the level of compensation – if the Defendant had conceded the indefensible case at the outset those costs would have been negligible.
In a surprisingly candid interview with the online specialist publication “ Clinical Negligence Law” Stuart Poynor, Chief Executive of the Staffordshire and Stoke-on-Trent NHS Partnership Trust commented:
“There is a need for a radical shake up of how the NHS and the NHSLA responds to claims and promotes safety and openness. There has to be a better dialogue between the NHS and the NHSLA, particularly as to how it works with its Panel Lawyers. There also needs to be a wider recognition of the distress that is caused to families when we cause harm that is indefensible. This comes from being open about what we do and saying “sorry”. It is a continuum of the steps that we are taking to improve patient safety and care.”
Whilst falling short of an acknowledgement that delay is a deliberate tactic adopted by the NHSLA, his desire to resolve the indefensible claims swiftly is refreshing and a welcome intervention in the debate. If it materialises in practice it could save the NHS meaningful amounts in terms of wasted legal costs but more importantly, save those who have been unjustifiably injured years of frustration and distress.
Of course the Defendant lawyers would rightly point out that “unmeritorious cases” are not the exclusive preserve of Defendants. Hopeless claims are sometimes made and pursued when they should not be. It is relatively rare and the problem usually arises because the Claimant has instructed a solicitor without specialist expertise in clinical negligence cases. The specialist solicitor will make sure that there is sufficient supporting evidence before commencing a claim. The inexperienced practitioner may mistake a non-negligent poor outcome as the basis for a good claim and pursue it relentlessly. That serves neither the Claimant nor the medical professional well. The importance of choosing the right solicitor to act for you when making a claim is paramount.