It is not necessary to work in clinical negligence to know that the NHS is clearly upset over the amount of money it is paying out for its clinical mistakes.

Unfortunately, it would appear that rather than examining the root cause of the problem, the NHS and its advisers have apparently sought to blame claimant clinical negligence lawyers for this expenditure, as the following press headlines illustrate:

• Lawyers use NHS as £100m cash cow
• Taking a knife to NHS leeches
• Lawyers get more than victims in NHS compensation scandal

It is easy to understand why, in light of such press coverage, the general public can be seduced into believing claimant clinical negligence lawyers are preying on the victims of medical accidents by prosecuting claims devoid of merit for scandalous fees, and so depriving the NHS of vital patient care funds.

The reality is very different. The first thing to consider is that by the time a claim is even put to the defendant it will have undergone a vigorous risk assessment by the claimant's solicitors and (unless the medical evidence overwhelming, for example in the case of a retained swab) be supported by independent expert evidence. In short, the claim will be far from futile from an evidential point of view.

Funding

As a result of the ever changing legal landscape, where claimants can no longer routinely rely on access to public funding or legal expenses insurance, an increasing number of claims are being run on a Conditional Fee Agreement (CFA) basis. It would be economic suicide for firms if solicitors were to prosecute futile claims on a CFA basis.

Further, claims prosecuted on the basis of either legal expenses insurance or public funding must at all times enjoy reasonable prospects of success (which invariably means having the support of independent medical experts) to receive continued funding.

In terms of fees charged in successful clinical negligence claims, it is true to say that as a result of the legal maxim 'he who asserts must prove', a claimant's legal costs will nearly always be higher than the defendant's costs, as the burden of proof rests squarely on the claimant's shoulders. It also has to be remembered that claimant lawyers are only entitled to; and indeed will only recover, legal costs that are reasonably and proportionately incurred in relation to the case. The NHS defence organisations and their lawyers have every opportunity to scrutinise and challenge a claimant's Bill of Costs – ultimately before a Costs Judge - should the parties be unable to agree settlement of costs.

The fact that such legal costs are paid out by the NHS is itself telling of the general reasonableness of claimant clinical negligence lawyer fees. In addition, if, as the defendant would assert, claimant solicitors prosecute futile cases, then this should not pose a threat to NHS coffers, as the defendant would simply defeat those claims and recover costs in the majority of cases from the claimant, whose claim will most likely be insured with after the event (ATE) insurance.

In support of their criticisms at the level of claimant lawyer costs, the NHS defence organisations and their solicitors often cite a simple comparison of damages realised versus legal costs in relation to selected cases.

This argument is both simplistic and disingenuous, particularly in relation to clinical negligence claims, where the value of a claim does not equate to either its complexity or the cost of its prosecution.

This will ring true with many claimant clinical negligence lawyers, who will no doubt have had experience of some high value claims where the issues of law and medicine have been relatively straight forward, and some low value claims that have involved complex areas of medicine and law.

In the opinion of the authors, for defendants to cite such bare statistics portrays a wholly inaccurate and biased picture of the way clinical negligence claims are conducted in general; and does not of course give any insight into the background of the claims themselves or, more importantly, the approach which the parties (and in particular the defendant) have adopted to the litigation.

It is the latter point which can have a dramatic effect on the level of legal spend. All too often claimant clinical negligence lawyers are faced with bare denials of liability which fail to address the salient points of the case or narrow the issues in dispute.

In addition, and by adopting this approach, the hospital or individual concerned will have demonstrated both an inability to admit wrong, or to learn lessons from what has taken place in order to mitigate the chances of a future recurrence.

NHS defence organisations

Once such claims are up and running, there is also an apparent desire by the NHS defence organisations to defend the indefensible, which has a clear impact on the level of both defence and claimant costs (including the acquisition of costly insurance policies) that could be significantly lessened if the defence took a more conciliatory approach to such matters early on.

Conclusion

The authors are of the view that the sums paid out by the NHS in legal costs could be drastically reduced if defendants and their defence organisations took a more enlightened approach to their handling of claims; and perhaps more importantly their precursors - complaints - from the outset.

The first step that could be taken by the defendant to avoid litigation itself (and by inference paying out damages and costs) is to simply apologise to the patient for the error and to provide that person with an explanation about what has gone wrong.

The power of an open explanation and apology to avoid litigation should not be underestimated; and it is often the absence of such a candid approach which transforms patients into claimants.

The literature indicates that openly disclosing medical errors does not increase the volume of litigation, as most patients simply want an explanation about what has gone wrong and an assurance that steps will be taken to avoid the same thing happening in the future.

The authors have had many claimants explain to them that one of their main reasons for consulting solicitors and deciding to embark on litigation was because of the defendant's apparent inability to say 'sorry', and the dismissive attitude which prevailed when they subsequently attempted to make a direct complaint and/or to ask the defendant for an explanation of what went wrong.

It would be naïve to say that proffering an apology would avoid litigation in all cases, because it would not. Some patients will always sue; and indeed, depending upon the degree of injury, some may be financially obligated to do so.

In such circumstances, and if a hospital has been negligent; and as a result a patient has suffered injury and loss, then damages will be paid out in any event, in a sum proportionate to the injuries and as prescribed by law. This is in effect an unavoidable financial outlay from the hospital budget, against which it insures.

Where the defendant does have scope to reduce expenditure from the NHS budget it is in relation to legal costs. It seems to the authors that, regrettably, many defence organizations, when put on notice of claims – and even those which are patently indefensible – simply adopt what might be best described as a 'siege mentality', perhaps in the hope that by proffering a bare denial of liability and dragging the case out, the potential claimant will either run out of funds or desire to continue (or both), and discontinue the action.

In the experience of the authors, it is counter-productive for the defendant to attempt to turn litigation into a battle of attrition for two main reasons.

First, when faced with this attitude from defence organisations, the authors have experienced many a claimant's resolve to litigate being chastened.

Second, this attitude of defence organisations serves only to increase legal costs, and is illustrated by the above case studies.

It is often the failure of the defendants to adopt a pragmatic approach early on in the cases which results in the payment of significant legal costs, which can exceed the level of damages recovered by claimants.

It must also be remembered that defence organisation and defence solicitors get paid by the NHS win or lose; and so to defend a patently indefensible case not only results in the NHS paying significant claimant legal fees when the claim settles, it also pays its own defence solicitors increased costs at the conclusion of the claim.

It is only right and proper for hospitals and doctors to have access to legal advice and the opportunity to defend claims against them. It is also only equitable for hospitals and doctors to have their interests represented by experience legal advisors.

However, litigation is a stressful experience for claimants and defendants alike. There is therefore an obligation on the parties' legal advisors to try to avoid formal litigation in the first place; and if this can not be done, to extricate their clients from litigation on the best terms possible as expediently as possible.

The authors both have experience of advising potential claimants that their claims did not enjoy reasonable prospects of success and as such those claims should not be pursued. Whilst quite understandably an injured claimant in these circumstances may find such advice unpalatable, it would be both professionally and morally wrong to advise and encourage a potential claimant to embark upon stressful, protracted and costly litigation when on balance, that claim would be ultimately unsuccessful. By the same token, sometimes the best advice which can be given to a defendant in relation to a claim is that the matter is one which should be settled.

For defence organisations to seemingly defend all claims, irrespective of circumstances, is doing their client's a disservice, in the opinion of the authors. This is shown by a review of recent the literature.

G v Swindon and Marlborough NHS Trust

In the case of G v Swindon and Marlborough NHS Trust [2009], the claimant put a Letter of Claim to the defendant based on independent expert evidence, and the defendant served a Letter of Response denying liability for the claim. In view of the defendant's continued denial of a liability, proceedings were issued and served upon the defendant. The defendant filed neither an Acknowledgement of Service or a defence, and so judgment was entered in default and a CMC was listed. The claim subsequently settled prior to the CMC in favour of the Claimant (7).

This approach serves to illustrate what can only be described as a manifest waste of costs by the defendant, in a case where they clearly had no legitimate intention to formally defend the claim, as shown by the fact that they did not even file an Acknowledgement of Service. A more sensible approach by the NHSLA taken earlier on in the claim would have brought the claim to an earlier resolution and no doubt reduced the legal costs paid out by the NHS.

Rogers v University Hospitals Bristol NHS Foundation Trust

In Rogers v University Hospitals Bristol NHS Foundation Trust [2009], the claimant (who was the widow of the deceased) initially made a formal complaint to the hospital in relation to what she perceived had been a delay in the diagnosis and treatment of her late husband's lung cancer.

In a minuted meeting as part of the complaints process at which the claimant was present, it was admitted that there had been a delay in diagnosing the claimant's husband's lung cancer from November 2002 onwards. When the claimant instructed solicitors they copied the minutes to the defendant and requested an admission of liability, but none was made.

The claimant's solicitors then obtained the medical notes and records and complaints documentation from which it became apparent that the defendant had known all along that there had been a delay in diagnosing the cancer from March 2002 onwards, but this had not been communicated to the claimant in the minuted meeting. This was pointed out to the defendant who still refused to admit liability. The claimant's solicitors therefore obtained a medical report and served a formal Letter of Claim and made a Part 36 Offer of settlement.

No response to the Part 36 Offer was received within the 21 day period, despite chasing from the claimant's solicitors. The defendant was, however, allowed to accept the Part 36 Offer out of time. In the opinion of the authors, not only does this case serve as a further example where there has been a manifest waste of costs by the defendant, as a result of them adopting an unpragmatic approach to an indefensible claim, but it also illustrates a breach of the open and transparent approach to complaints as mandated by the Department of Health guidelines.

It is also perhaps telling that when such criticisms are made of claimant clinical negligence lawyers fees by defence organisations, their reporting of cost versus damages statistics is not supported by case studies illustrating these alleged bellicose actions of cost hungry claimant lawyers in the face of an irenic defendant looking towards early settlement.

The fact that such examples are not reported with any frequency to support the defendant's criticisms is indicative of the fact that what, if any examples do exist, are very few and very far between and have a negligible impact on the cost consequences to the NHS.

As the authors have mentioned above, such claims, if successful, would ultimately form part of those scrutinised by the Costs Judge and only those costs which have been reasonably been incurred will be awarded.

The 'costs ball' is very much in the defendant's court, and until a more enlightened approach is adopted by the defence organisations, comments such as:

'it is regrettable in this case that the defendant, through the NHSLA, did not take seriously the allegations of negligence which were put forward in the letter of claim. Clearly, if settlement had been achieved at that time, costs incurred in relation to commissioning formal medical evidence could have been avoided. Even when this report was unilaterally disclosed, no formal offers of settlement were made and it was only once court proceedings were issued and served (at yet further expense) that solicitors sought to enter into settlement negotiations'

will continue to appear in the literature, and significant sums will continue to be paid out in both damages and legal costs in the United Kingdom each year. For example, the NHS paid out nearly £109m in claimants' legal costs in 2007/2008, together with damages of £385m.

In short, if the NHS and its legal advisers refined their current approach to dealing with adverse events and claims, it would, in the view of the authors, find that there is much it can easily do internally to reduce its annual clinical negligence bill of costs.

(This article was originally published in the March 2010 issue of PI Focus.)