The clinicians frustration arose out of the histology report following ERPC which confirmed the ABSENCE of any retained products of conception.

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1 Legal and Risk Services Clinical Negligence Newsletter July 2016 Common Sense Prevails! Welcome to the new NWSSP Legal and Risk Clinical Negligence newsletter. We are very proud to say that this year not only represents the launch of our newsletter but also the 20 year anniversary of the advent of NWSSP Legal and Risk, previously known as Welsh Health Legal Services. The aim of our newsletter is to inform and keep our clients up to date in this fast changing area of law. If you have any queries on any of the legal issues discussed please do not hesitate to contact either the writer of the article, one of the key contacts on the back of the newsletter or any other solicitor at Legal and Risk. We do hope you enjoy reading the newsletter and find it useful. Please let us have your suggestions and feedback, positive and negative. Any suggestions for this newsletter? At Legal and Risk Services, we realise the frustration faced by clinicians when asked to provide a response to allegations of negligence which are simply nonsensical! Cwm Taf University Health Board were recently faced with such a situation. The clinical negligence claim related to retained products of conception following caesarean section requiring operative procedure to evacuate the same. The clinicians frustration arose out of the histology report following ERPC which confirmed the ABSENCE of any retained products of conception. This was the basis of the Health Board s defence and the position was emphasised to the claimant's solicitors throughout the claim (both at a pre-action stage and following formal service of proceedings). The claimant made a very low offer of settlement, clearly thinking that the Health Board would feel at risk and be forced into settlement. Legal and Risk Services were assisted throughout by the clinicians providing detailed witness statements, literature in support of the treatment provided and comments upon the claimant s various explanations as to how the RPOC could have disappeared between ERPC and the histology laboratory! Thanks to the support of the clinicians, Legal and Risk Services persuaded the claimant's solicitors that the claim could not reasonably be pursued. Not only was the claim discontinued, but the claimant's solicitors were required to pay the Health Board s costs. A costly exercise for the claimant's solicitors who will hopefully now ensure their cases have merit before pursuing a clinical negligence claim. vanessa.llewelyn@wales.nhs.uk

2 Challenges to Claimant Costs As you may be aware many Claimant fi r m s c h a n g e d t h e i r clients funding arrangements prior to the implementation of Legal Aid, Sentencing and Punishment of Offenders Act (LASPO) in April 2013 which brought about a change in funding for clinical negligence claims. In many cases, Legal and Risk Services found conditional fee agreements ( CFAs ) were entered into in claims which had previously been funded by way of public funding, which was removed. However, this included claims brought by children and those under a disability even though public funding remained in place for these claims. This change has an important bearing on the costs claimed as the additional liabilities: the success fee and after the event insurance ( ATE ) premium, recoverable on all cases funded by way of a CFA entered into prior to 1 April 2013, became non recoverable in claims funded by way of a CFA entered into post 1 April 2013, apart from the part of the ATE premium to cover obtaining expert reports dealing with liability in clinical negligence cases. Many Claimant solicitors changed their funding arrangements prior to LASPO s implementation in order to recover success fees and ATE premiums in their entirety. The National Health Service Litigation Authority have recently taken four cases to detailed assessment to challenge the validity of the change in funding and the High Court gave a recent judgement ordering that the additional liabilities were not recoverable unless the client had been made fully aware of all funding options. Therefore in order for the Success fee and ATE premium in full to be recoverable in such cases, the client must have been advised on the funding options available and advised that if they entered into a CFA after, rather than before, 1 April 2013 they would have been entitled to a 10% uplift on their damages for pain suffering and loss of amenity (referred to as the 10% uplift on general damages). The costs team at Legal and Risk Services are aware there are cases in Wales where the funding agreement was changed prior to the changes introduced in April 2013 and will continue to argue that any additional liabilities are not payable. If you require further advice on this or any other costs issues contact Alison Walcot on

3 A new age for informed consent? The landmark decision handed down by the Supreme Court in Montgomery v Lanarkshire Health Board is of great significance for both lawyers and medical professionals in ensuring a patient has been properly consented. The new legal test for informed consent establishes that a doctor is under a duty to take reasonable care to ensure that the patient is aware of any material risks involved in a recommended treatment and of any reasonable alternative or variant treatments. The test of materiality is subjective in that it should be considered whether, in the particular circumstances, a reasonable person in the patient s position would be likely to attach significance to the risk, or the doctor is or should reasonably be aware that the particular patient would be likely to attach significance to it. This is a significant change to the Bolam test which asks whether a doctor s actions would be supported by a responsible body of his or her peers. The Bolam test will no longer apply to the issue of consent, although will still apply to other aspects of clinical negligence. Whilst a landmark decision, those in the medical profession will note that the decision merely brings case law into line with the patient centered approach to informed consent that is already contained within GMC Guidelines. Given the significant implications of Montgomery all staff need to be aware of their new obligations in law and Legal & Risk Services are happy to offer training. thomas.toyne@wales.nhs.uk

4 Proposed fixed costs for clinical negligence claims valued up to 250,000 Last summer, the UK government announced that there would be a formal consultation by the Department of Health on proposals to introduce fixed recoverable costs for clinical negligence claims, applicable in England and Wales. A pre-consultation exercise launched in August suggested a fixed fee regime be introduced from 1 October 2016 for all clinical negligence cases up to 250,000, along with caps on fees for expert reports, in the hope of saving approximately 80m a year to the NHS. In a speech delivered in January 2016 by Lord Justice Jackson, Court of Appeal Judge and founder of the present costs regime, he not only showed support for the government s plans but recommended that ministers introduce fixed costs in all civil claims up to 250,000 proposing a table of costs (which can be found here judiciary.gov.uk/wp-content/ uploads/2016/01/fixedcostslecture-1.pdf on page 13). However, Lord Jackson urged ministers to pause any proposals for clinical negligence cases. It now seems inevitable that the government s plans to introduce fixed costs for clinical negligence claims in October 2016 will be delayed as the proposed formal consultation was not due to be published until after the EU referendum and the result is likely to delay the consultation further. Watch this space! charlotte.pritchard3@wales.nhs.uk

5 Putting Things Right Cases where the financial threshold is likely to exceed 25,000 We have recently updated our guidance on how such concerns should be dealt with under The NHS (Concerns, Complaints and Redress Arrangements) (Wales) Regulations 2011 where the financial threshold is likely to exceed 25,000. Such concerns should be investigated under Regulation 23 and a Regulation 24 response provided. This response must comply with Regulation 24 and paragraph 6.76 of the Guidance. There is no requirement to come to a conclusion as to breach of duty or causation, i.e. Qualifying Liability. The investigation should however comprise of a thorough examination of the circumstances of the concern to include a timeline of events and, where appropriate, an investigation report and action plan. The complainant should then be directed to solicitors if he/ she wishes to pursue a claim. This means that it is essential that all concerns are assessed at the outset in respect of potential value as this assessment will inform the nature of the investigation. All Health Bodies will need to build this quantum assessment into their processes for grading/ triage on receipt of a concern that alleges harm. Assessing potential value on receipt of a concern will often be difficult as you may not have much information. However, you must simply make your best guess with the information you do have. There are certain sets of facts which will nearly always attract a potential value in excess of 25,000 such as concerns arising from birth injuries, the death of a patient who has dependants and cases leading to amputation. There are also key issues which should be considered such as whether the person is going to suffer an ongoing disability and, if so, the likely impact on daily functioning, the ability to work and the ability to care for any children. The complainant ought to be told at the earliest possible stage if the Health Body s decision is that the response provided will be under Regulation 24, due to the potential value exceeding 25,000. If possible, this information should be included in the acknowledgement letter or a letter sent shortly afterwards. Health Bodies are encouraged to agree limitation moratorium requests where a concern is to be investigated under the Regulations. Legal and Risk Services are happy to provide further training if this would be helpful. sarah.watt@wales.nhs.uk

6 A Development in Loss of Dependency Claims Knauer v Ministry of Justice [2016] UKSC 9 A recent judgment of the Supreme Court has increased the value of claims where a person has died as a result of negligent treatment and claims are made for loss of dependency. All future loss multipliers are now to be calculated from the date of the trial rather than the date of death, as was the position previously, in fatal accident claims. At trial in Knauer, the Claimant and Defendant agreed the annual figure for loss of dependency; however, there was disagreement over the amount of years by which the annual figure was to be multiplied and whether this should be calculated from the date of trial or the date of death. The trial judge was bound by precedent and held that the annual figure should be multiplied from the date of death. The Claimant subsequently appealed the decision to the Supreme Court. In their judgment, the Supreme Court allowed the Claimant s appeal holding that by calculating the damages for a loss of dependency from the date of death, the Claimant suffered a discount for early receipt of the money which was often not actually received until after the trial date. This decision in essence means that claims brought for a loss of dependency will increase in value. It is anticipated that the longer the delay between the date of the Claimant s death and the date of trial, the greater the increase in the value of the claim. Whilst the introduction of the Civil Procedure Rules in theory minimises delay between the date of death and the date of trial an analysis undertaken by Sergeant s Inn Chambers in London suggests that the increased value overall in these types of cases could be between 5-25%. john.hatton@wales.nhs.uk

7 Disclosure: Cards on the Table Disclosure is the process whereby parties in a civil claim provide confirmation as to the documents in their control which are material to the issues in the claim. Document means anything in which information of any description is recorded. This includes all written documents, audio recordings, video recordings, photographs and electronic material contained on both computers and back-up storage systems. There are two different ways in which disclosure can take place; standard disclosure (by a list of documents) or a request or application for specific disclosure. Standard disclosure requires a party to disclose the documents on which he relies and the documents which adversely affect his own case, adversely affect another party s case or, support another party s case. The procedure for a standard disclosure starts with each party making a list of documents on the relevant form and serving it on the other party. It is crucial that this list is drafted and checked with care. It must contain all of the documents which are relevant and material to a claim, including reference to all of the medical records and other documents (including concerns/incident documents/relevant policies) which are held by the Health Board. The list must then be signed by the claims manager to certify its accuracy. Inspection then takes place immediately following exchange of lists of documents. The duty of disclosure continues until the proceedings are concluded, meaning that the other party must be notified immediately if further documents relevant and material to a claim are found later on. There are serious consequences for failing to comply with the disclosure obligations, whether or not the omission was deliberate or not. Firstly, there could be consequences for the party, either by the Court ordering that the party cannot rely on the document, striking out the party s case or making an adverse costs order. Secondly, the party s credibility could be seriously weakened in terms of the claim. Thirdly, deliberate destruction of relevant documents could potentially constitute a criminal offence, e.g. contempt of court or perverting the course of justice. Due to the sanctions listed above, it is crucial that all relevant documents are identified, listed in the list of documents and preserved intact from the time that litigation is commenced. The usual processes for destroying documents, e.g. records/radiology, after a certain timescale must be suspended pending conclusion of the claim. gemma.cooper@wales.nhs.uk

8 Anne-Louise Ferguson - Managing Solicitor/ Director of Legal and Risk anne-louise.ferguson@wales.nhs.uk Mark Harris - Solicitor mark.harris@wales.nhs.uk Sarah Watt - Solicitor sarah.watt@wales.nhs.uk Rhian Griffith - Solicitor rhian.griffith@wales.nhs.uk Alison Walcot - Solicitor alison.walcot@wales.nhs.uk Vanessa Llewellyn - Solicitor vanessa.llewellyn@wales.nhs.uk Elizabeth Dawson - Solicitor elizabeth.dawson@wales.nhs.uk Gemma Cooper - Solicitor gemma.cooper@wales.nhs.uk