The new NHSLA Annual Review Report and accounts 2013/14 has confirmed a challenging and “unprecedented number of new clinical negligence claims” for the NHS, NHSLA teams and their Legal Panel, whilst simultaneously bemoaning the current cost scenarios post-Jackson which they allege are frequently arising in pre-investigation and pre-litigation stages without the benefit of cost budgeting requirements scrutiny.
The growth in the figures for new clinical negligence claims was earmarked at a total of 11,945 with the NHSLA admitting that it had received more than 1,000 claims per month in a six month period, for the first ever time.
While the NHSLA were pleased to report that a total of 15,384 claims were closed in total in 2013/14, they also admitted that the market had changed post-LASPO with a shifting in the way that legal costs were penetrating the clinical negligence claim market with the argument that significant costs were being incurred by Claimant solicitors prior to the NHSLA even receiving a letter before claim.
The report quotes: “Changes to the legal market, in particular changes to claimant’s legal funding arrangements, had a significant impact on our work” further arguing that new entrants to the clinical negligence arena meant that it was “one of the last remaining areas where claimant solicitors can charge an hourly rate, resulting in us having to deal with more than ever new claimant solicitors.” The NHSLA go on to argue that “We have also seen an increase in poorly investigated claims and claims where the care clearly was not negligent being brought by lawyers who do not specialise in clinical negligence work.”
The NHSLA further contended that “this has resulted in the ‘front loading’ of costs in some cases prior to notification to the NHSLA. Significant costs are often incurred even before the claim reaches us, which can result in a disproportionate costs claim by the claimant’s lawyers compared to the damages payable to the claimant and mean that more monies can be paid to lawyers than patients who have been harmed by negligent care.”
The Woolf reforms led to the introduction of the Civil Procedure Rules in April 1999. Since then almost all civil cases have of necessity been frontloaded to some extent and obviously more so in case involving complex clinical negligence claims.
The report does supplement the NHSLA’s “concerns” concerning “front loading” with the argument that despite the influx of new clinical negligence related claims, the NHSLA has been “highly prudent and efficient” in the management of expenditure expended on litigation. However, this is not readily apparent if you happen to be sitting on the Claimant side of the fence.
The NHSLA also states that it successfully managed claims expenditure within financial targets, with a saving of over £1.4 billion for the NHS by “robustly defending unjustified clinical negligence claims so that 44% of the clinical claims that we dealt with in the past year were resolved with no payment of damages and 79% of the relatively small proportion of cases that were decided in court were successfully defended at trial.”
The NHSLA further argues that this was complemented by further savings by challenging claimant legal costs “leading to an average 28.8% reduction in bills.”
Whilst at first blush this would appear to reflect a very high level of reductions to costs claims across the board, by their own admission this figure includes “poorly investigated claims and claims where the care clearly was not negligent being brought by lawyers who do not specialise in clinical negligence work”.
The report makes no mention of the frequent delays that arise as a result of Defendant Trusts losing medical records or delaying their production which is a frequent occurrence, whether deliberate or otherwise; as is the production of records on a piecemeal basis.
Yet more frequently there are delays that are occasioned by the NHSLA and/or its panel solicitors who refuse to admit obvious breaches whilst “robustly defending” almost all claims, or admit the breached but then deny causation..
The new post-Jackson cost-budgeting requirements have led to the need for firms to be as prudent with cost outlays as possible; this includes pre-action Costs that remain open to challenge at the assessment stage.
Yet one of the arguments the NHSLA makes in the current period of intense cost budgeting is that “some claimant solicitor firms are undertaking significant investigations of some claims in the pre-litigation period and pre-notification to the NHS. This means that they are not subject to costs budgeting requirements by the courts, which only apply after the pre-litigation period.”
In the circumstances, perhaps the time has come for the NHSLA to review its patient’s complaints handling processes with a view to removing the current culture of negativity which results in the denial of practically everything.
The NHSLA has clearly presented a biased and one sided view regarding the costs involved in pursuing clinical negligence claims.
The current system whereby the NHSLA instructs just one firm of Costs Negotiators to conduct and contest almost all costs negotiations in England does little to reduce the significant costs associated with the assessment process. It also does little to protect the public purse.
If you are interested you can read the full report of the accounts here.
Jim Knight, Partner and Costs Lawyer