ADR in clinical negligence
April 8, 2019
This article was originally published in AvMA Lawyers Service Newsletter April 2019.
AvMA put on a really good talk in February, the theme of the day being “Alternative Dispute Resolution – Effective Use & The Way Forward”. One of the speakers was Julienne Vernon, Head of Claims Management Quality at NHS Resolution; her talk was very well informed and interesting, making it clear that clinical negligence claims are hugely costly. Of course that raises questions about the best way to avoid the cost of such claims (eg better training of clinicians), but that’s not what really interested me about her talk. I have settled claims worth £50 million against the NHS in the last six months, and I wonder whether my experience resonates with her perception.
In the first case, mother and grandmother had phoned the hospital to report a problem, and they were not given the correct advice (very similar to TW v Burton NHS Trust 2017 EWHC 3139 (QB)). As a result, baby was born with severe cerebral palsy. Liability was denied until the settlement meeting 7 weeks before trial (three and half years ago). At that meeting, we were assured by the defence silk that they expected to win, and so the offer was 33% – followed by 50%, 67%, 75% and finally 80%, which we accepted (and which was the percentage we had told them at the outset was the minimum acceptable). Some might see that as good negotiation, but I would differ; it was a huge waste of money.
It was followed by a trial being listed on quantum in October 2018. The settlement meeting was arranged for two months before trial, and failed. The final offer of half a million more was made two weeks before trial, which accepted. The same comment would apply, in my opinion.
ADR is supposed to be flexible, but this was just old fashioned litigation at its worst.
The second case was an improvement, because liability was sort of admitted, but only ten days before trial in 2014. A settlement meeting on quantum was arranged for three months before trial (listed in October 2018), but it failed. We suggested mediation (they did not initiate it, but did agree), and that failed. We then initiated further settlement discussion, and the case settled on an increased offer a week before trial.
The third case was different. The trial was listed for November 2019, and the settlement meeting arranged for February; the case settled.
Because I specialise in brain injury rather than clinical negligence, only part of my work is against the NHS, and so my perceptions are bound to be limited. Having said that, I can’t remember a single case other than the third one above in which I have thought that the conduct of the defence was really sensible. Of course my practice is claimant only, so that I’m bound to see the claimant view, but I have to say that, when confronted with the third case above it was easy to see how different it was from the other two.
Similarly, I can’t remember a single case in which the NHS has offered mediation. Ms Vernon said in her AvMA talk that “less than 1% of the cases we handle go to trial. NHS Resolution has long been an advocate of alternative dispute resolution (ADR) for claims resolution.”. NHS Resolution was launched in December 2016, and they have three “service providers”; I think I understood in the first of the cases above that they would only engage in mediation if we agreed to use one of their selected providers (which we did) – but is that a good start to a mutual dispute resolution process? However, they do declare that they will pay the mediator’s fees/travel/accommodation costs in cases where liability is admitted in full or in part, or the claimant is unrepresented. They have completed over 500 mediations, and 75% settle on the day or within 28 days of mediation.
In 2017/8, obstetric clinical negligence claims made up 48% of the £4.5 billion spent, even though they represented only 10% of the number of clinical negligence claims. In other words, nearly half the outlay was on claims like the ones above. That might make you think that they would concentrate on those claims, and try to make sure that they saved as much cost as possible. Of course, they could say that, by taking cases close to trial, they were negotiating effectively, but I really doubt whether an analysis of the costs would bear that argument out.
Bearing in mind that ADR is hugely flexible, and can be used at any stage of the case, including early on, I wonder whether it might be possible for the NHS to save costs by initiating the process earlier and more often?