Page 27 - PIC Magazine Spring Issue 15
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    How much of an impact will fixing costs for lower value claims actually have? Of the cases brought, 10% relate to obstetric matters. Those 10% of cases take up 50% of the spend on damages, so your average obstetric claim will usually be of a higher value.
  SCIL Scheme – Patient Safety at Front & Centre
The Society of Clinical Injury Lawyers (SCIL) created a bespoke scheme as part of its response to the initial Government
proposal on fixed costs. The scheme does not make reference
to costs; SCIL are opposed to fixed costs in principle. Instead,
the scheme is intended as an improvement on the Pre-Action Protocol for lower value claims. It has been designed by clinical negligence practitioners, those who see where the costly delays and unnecessary exchanges lie. Solutions are proposed to the problems we see time and time again: no early apology, a closing of ranks, a culture of defend-delay-deny, no learning from its mistakes. These problems are what lead to increasing costs in litigation. Claimants succeed in 83% of cases where proceedings are issued; cases should not have to go on for that long before a resolution is offered.
SCIL continue to publicise the scheme, and it’s available on the organisation’s website. It has been approved by our members, circulated to the Government and was provided to the CJC. You will see that it has at its heart the issue of patient safety. Patient safety was sadly relegated to the back of the CJC working group’s report, with both SCIL and AvMA mentioned as being two of the more vocal advocates of patient safety during the CJC process.
A central plank of SCIL’s scheme is to introduce ‘Patient Safety Champions’ for every NHS Trust; individuals with appropriate experience appointed to help bring together the handling of
and learning from adverse incidents. Champions would have the power to report to the NHSR on the risk of defending any adverse incidents, and would be able to report any matters to the CQC
as necessary. They would be responsible for helping to nurture a more open and honest culture, where mistakes are admitted to at
an earlier stage, proper apologies are given and where the learning from a mistake
is valued. Fewer negligent mistakes means fewer claims. A holistic effort to
improve patient safety, cut the number of mistakes and thereby cut the number of claims will, in this writer’s opinion, make a much more noticeable
reduction in the costs of NHS litigation.
               Joseph Norton is an Associate Director and Head of Clinical Negligence at Waldrons Solicitors.
  What about the compensation? This is in truth where the significant increases have taken place. In 2015, damages totalling £950m were paid out. This figure has increased to £1.7bn in 2018/19, an 87% increase. So are Claimant solicitors doing a much better job for their clients with not much more reward? We’d like to think so, but the NHSR have attributed £384m of the damages paid out to the discount rate changes. That accounts for a large chunk of the increase, but there’s still a significant increase in damages paid out.
It’s only right that the expenditure of the NHS is properly considered, and that reasonable savings are made where possible. So will fixing costs in lower value claims help?
Fixed Costs – A solution for a problem that doesn’t exist?
How much of an impact will fixing costs for lower value claims actually have? Of the cases brought, 10% relate to obstetric matters. Those 10% of cases take up 50% of the spend on damages, so your average obstetric claim will usually be of a higher value. And rightly so; many cases involving obstetric issues are high value as they involve some of the most severe and devastating injuries we come across and Claimants are entitled to recover compensation to help put right any wrongs for the rest of their lives.
So, high-value cases involving obstetric issues wouldn’t be caught by the proposed damages limit of £25,000, and they take up half the annual spend on damages. Also, the £384m of damages which are attributed to the discount rate change won’t be affected much either, as most cases worth less than £25,000 won’t have much in the way of future losses.
So what’s left? The NHSR reported that 3,095 viable cases worth less than £25,000 were received in 2018/19. A success rate of 44% is claimed by the NHSR, and so if we apply that success rate to the number of lower-value cases received, we’re looking at about 1,700 cases where fixed costs could be applicable.
In the figures quoted by the Gazette, some Claimant representatives on the CJC working group wanted £8,000 costs per case, plus 40% of agreed damages; equivalent to a maximum of £18,000 in that example. Applying that maximum sum to these 1,700 cases, we’re looking at an outlay of £30m on Claimants’ costs to which fixed costs might apply. The NHSR doesn’t have the information readily available in its accounts to find out how much is currently spent on Claimants’ costs in those 1,700 cases. Whatever the true figure is, given the above, the proposal on fixed costs simply won’t work in making a sizeable saving to the NHS budget. So what will? Spring 2020

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