Alternative solutions: Collaborative working in larger clinical negligence cases
June 24, 2019
This article was originally published in AvMA Lawyers Service Newsletter June 2019
(Alternative Solutions: Collaborative Working in Larger Clinical Negligence Cases)
There are many shared frustrations for clinical negligence practitioners. There is one which I believe can and must be addressed for the benefit of patients, other stakeholders and society as a whole.
With a mixed PI practice (i.e. between trauma and clinical negligence) focusing on larger value, complex cases, I have always had a keen interest in rehabilitation. Whilst my practice is almost exclusively on behalf of injured people, I am committed to collaborative working and looking for more effective means of dispute resolution. However, as a member of the working group for the APIL/FOIL Guide to the Conduct of Cases Involving Serious Injury (the Guide), (http://www.seriousinjuryguide.co.uk/), I am constantly frustrated by the difference in claims handling practice and the approach to rehabilitation in trauma cases compared with clinical negligence.
For example, I may have two cases open on my desk at the same time both involving serious spinal cord injury (this is a metaphorical example, not an admission of poor GDPR practice). The first might relate to a fall at work or a high-speed road collision, the second to negligently performed surgery or mismanagement of infection. The needs of both injured people are essentially the same: early assistance including rehabilitation and a timely and fair resolution of his or her claim. Typically, there will be early dialogue and engagement between claimant representative and liability insurer (including the making of interim payments and joint working under the Guide and Rehabilitation Code), but the same point will not be reached in the clinical negligence dispute for a number of years, if at all. There are exceptions (trench warfare in trauma cases and glowing examples of collaboration in the clinical negligence sphere), but this anomaly is replicated too frequently within my own practice and those with whom I have discussed this issue (professionals acting for injured people and compensators alike).
This difference of approach is unsustainable, particularly in the context of larger value claims where there is a greater need for and potential benefit in working together. The purpose of this article is to introduce the Guide to those who are less familiar with it and to look at the barriers and possibilities with collaborative working in clinical negligence disputes.
Serious Injury Guide – A short history
Work in this context between APIL/FOIL began with the Multi Track Code, which was first published in March 2008. The Code was developed with the objective of parties working together, allocating tasks (to avoid duplication), and narrowing the issues throughout the claim. Not all cases would receive early admissions of liability, but there was a common aim to attempt dispute resolution as early as practicable. A pilot was introduced between supportive members of both organisations on 1 July 2008.
Following conclusion of the pilot, and subsequent discussions with members of both organisations, it was decided that a less prescriptive approach should be taken. The Guide is the result of discussion about this new approach. The Guide, like the Code, is aimed at achieving a collaborative process between claimant and defendant representatives, in larger claims where damages are expected to be over £250,000. It is now formally referenced in the Pre-action Protocol for Personal Injury Claims and work is underway to see how it might be extended or modified to assist in other cases. It does not, however, apply to clinical negligence cases.
Serious Injury Guide – What it is (and is not)
The Guide is a ‘guide’ not a Protocol. It is a ‘best practice guide designed to assist with the conduct of personal injury cases involving complex injuries, specifically cases with a potential value on a full liability basis of £250,000 and above and that are likely to involve a claim for an element of future continuing loss.’
Likewise, the Guide is not a straightjacket, but ‘creates an environment that encourages positive collaborative behaviour from both sides, and will work in parallel with the Civil Procedure Rules.’ It is recognised that it may be necessary to depart from the Guide, in whole or in part, in some cases. In particular, nothing in the Guide removes a solicitor’s duty to act in the best interests of the client and upon their instructions.
For me, the key benefit of the Guide is encouragement of early collaboration and joint case planning or ‘route mapping’ – i.e. agreeing a framework and timetable for engaging on a regular basis to review progress and bring cases to a conclusion. The inherent shortcoming with traditional case management is that cases are route mapped to trial, not to an earlier resolution. The Guide focuses on the latter.
The working group have identified a number of essential ingredients to successful route mapping, along with the perils, pitfalls and opportunities.
Route mapping: When does it work well?
- Knowledge of the opponent: Building positive relationships between representatives is essential to close collaboration. Logically, this should be more readily achievable in clinical negligence with specialist claimant representatives and common panel representation between trusts, the NHSR and other defence organisations.
- Stepping away from the keyboard: There can be a tendency to hide behind emails, when direct communication would be more effective. We should all be conscious of the possibility for miscommunication and other pitfalls with instantaneous communication.
- Division of labour: Separating out and allocating tasks can reduce duplication and cost, speed up investigation and case progression, whilst creating a culture of shared responsibility.
- Transparency of approach: Very little can be done covertly, that cannot be achieved in a spirit of openness, but nothing undermines collaborative working quicker than for one party (claimant or defendant) to seek to undermine or wrong foot the other outside an agreed process.
- Imagination: Nobody has the monopoly on good ideas within dispute resolution and many clinical negligence cases have their nuances and unpredictable features. Being flexible of mind and able to think outside the box helps to move cases along again when they stall or lose momentum.
- Ability to identify what matters: Sometimes there will be one or two key issues of importance for the parties. Finding and focusing on this can be the key to progress.
- Trust: This lies at the heart of the process.
Route mapping: When does it not work well (or at all)?
- Counsel can deflect progress: There is a natural tendency for barristers to want to advise on the basis of the best possible evidence available, but greater certainty invariably means increased cost and delay. Use of more experienced, specialist counsel and engagement at an early stage of proceedings can be key to resolving disputes on a timelier basis.
- Unwillingness to show a hand: As stated above, there is little that cannot be achieved on an open basis, provided both parties are committed to transparency and fairness. Defensiveness on both sides is a cultural problem.
- Delayed access to records: This is the bugbear of claimants and defendants alike. If technology brings no other improvements to the claims process, it should facilitate easier, more cost-effective and reliable access to patient information. But parties have to embrace technology and work together to implement and make best use of it.
- Delayed planning: If planning is not undertaken at an early stage, then cases tend to stagnate and it can be difficult to restore momentum later.
- Case treated as being on tram lines with expected staging posts: It is not uncommon to encounter an inflexible stance by one or both parties, not wishing or being permitted by internal protocol to deviate from the traditional staging posts, i.e. just going through the motions on a post box basis, as though the case were simply subject to conventional directions.
- Over reliance on experts: Placing over reliance upon expert evidence, without challenge, can have disastrous consequences. There has to be more effective quality control on both sides and no undue deference.
Barriers to collaborative working in clinical negligence
- Liability: Whilst breach of duty in clinical negligence disputes is typically more complicated than in trauma claims, the Bolam / Bolitho influence is waning, particularly against the background of Montgomery and modern, objectively evidenced delivery of healthcare. If we move to a more modern position, consistent with the NHS Constitution, of asking ‘whether a patient has been let down?’ and not ‘whether a claim is technically defensible?’ there is scope for improvement in both patient safety and the claims resolution process.
- Causation: This is more complicated in some, but not all cases. Accepting weak causation arguments as an excuse for not engaging earlier often comes at too high a price.
- Constitutional issues: The inability of the NHS to offer timely rehabilitation, in the absence of an admission of responsibility or judgment is a real problem. Traditional liability insurers are far more likely to offer prompt assistance, against the background of comprehensive evidence that early rehabilitation is more effective, even in those cases where liability is not clear-cut. Greater flexibility would help and inevitably save money in the round.
- Co-morbidities and supervening illness: Identifying those cases where it is reasonable and proportionate to explore past medical history or comorbidities is key. A blanket approach is unhelpful.
- Experts (objective and subjective bias): Experts can be subject to bias, lack internal logic or simply be wrong on key issues. There are still far too many experts, on both sides, who trade on a hired-gun reputation. Bolam / Bolitho might be said to positively encourage such an approach.
- Poor analysis (LOC and LOR) or communication: This is a problem for both sides if present.
- Lack of trust: Lack of confidence in the good faith of an opponent will invariably stifle collaboration or derail it altogether. Trust is hard one, but easily lost, particularly within a specialist area where practitioners are more likely to encounter one another on a repeat basis.
Lost opportunities in clinical negligence
There are a number specific features about clinical negligence that make the absence of closer collaboration more of a missed opportunity:
- Restoring relationships (Dr, Patient and NHS Constitution): Unlike, for example, two motorists who collide on the highway, a patient will often be in an ongoing therapeutic relationship with an individual clinician or under the long-term care of the trust against whom a potential claim is directed. There is also a broader relationship between the patient and the NHS, the latter being a much loved and prized public organisation. Preservation or restoration of these relationships is valuable in itself.
- Maximising outcomes (rehabilitation cost v. benefit): Closer collaboration would promote more effective rehabilitation. Effective rehabilitation has the potential to reduce a patient’s ultimate recourse to public funding, i.e. spending by trusts, CCGs or local authorities. Whether or not claims are successful in whole or in part, a reduction in patient morbidity and associated disability reduces the cost to society as a whole. Against this background, adopting a similar approach to RTA insurers makes more rather than less economic sense.
- Reducing delay and cost: Collaborative working has the potential to significantly reduce delay and cost within the litigation process itself, supposedly a shared aim between claimant and defendant stakeholders.
- Resolving disputes without litigation: This has a benefit in terms of cost and delay, and reducing the burden on limited court resources. But it also may avoid reputational issues for clinicians.
- Creating an environment for compromise: Parties cannot litigate a case aggressively for a number of years and expect settlement discussions to be straightforward. Working on a collaborative basis, thereby promoting good faith, a sense of fairness and giving patients reassurance and a feeling of security is far more likely to create an environment conducive to discussion and compromise. This is particularly the case in clinical negligence matters, where the patient or their family may not be driven exclusively by financial motives, i.e. rather a search for the truth or concern about the safety of others.
- The ‘psychological’ factor: In my experience, claimants tend to do better functionally and mentally with a metaphorical ‘arm round the shoulder’ approach from defendants following adverse events, particularly against the background of a prior relationship. The importance of ‘doing the right thing’ in terms of outcome cannot be understated.
Collaboration: relevant factors
- Nature of the dispute: Some issues, for example a pure legal question or point of principle, may only be effectively resolved by some form of formal adjudication. Understanding the nature of the dispute, and its suitability for resolution on a cooperative basis, is key.
- Multiplicity of issues (or Gordian knot): If there are multiple issues, collaborative working can at least help in narrowing the substance of the dispute. Often there is one central issue which, if successfully unpicked, can clear the way for compromise. Again, the key is identifying what’s important.
- Merits of the case: In strong cases, the case for collaboration is clear. In weak cases, reticence on the part of defendants is more readily understood. But few cases are entirely clear-cut and the middle ground is where great opportunity lies for progress.
- Proportionality: Consideration here is being given to larger value cases, which are currently subject to an altogether different, more flexible and co-operative approach within insurance litigation. In most if not all such cases the proportionality issue weighs heavily in favour of adopting a more collaborative approach.
- Timing of engagement: Early notification and discussion of claims brings about considerable benefit within insurance litigation. The case for doing so within clinical negligence, prior to costly investigation and hardening of positions, would benefit from close examination.
- Realism: There is an obvious need for pragmatism within any collaborative process.
- Severable issues (the ‘baby and the bathwater’ trap): One of the key benefits of the Guide is a recognition that although road blocks may be encountered, this should not frustrate the entire collaborative process. Too often in clinical negligence cases, one issue is problematic and other aspects of engagement then falter.
Collaboration: impasse and the armoury
Within the Guide, the importance of communication and the availability of an escalation mechanism are emphasised. If these tools are not fully effective, an infinite number of alternatives – formal or informal – exist. These include:
- MDTs / JSMs.
- Mediation (evaluative v. non-evaluative).
- Neutral evaluation (paper or oral).
- Adjudication / Arbitration.
- External advice (including experts and counsel).
- Joint instructions to external experts.
- Binding, non-binding and hybrid solutions.
Collaboration: learning and improving
Personally, I would welcome an extension of the Guide to clinical negligence disputes. Whether or not this happens, I believe there is scope for closer collaborative working. These are a handful of the things that might be considered by practitioners and firms:
- Dialogue (internal and external): Claimant and defendant representatives might talk internally and externally about their practices and potential areas for greater engagement.
- Start small (firm-to-firm, less contentious issues): In any situation where the same parties readily encounter one another, practitioners might usefully consider aspects of practice that lend themselves to standardisation, streamlining or simplification, e.g. consistency of notification, management of disclosure and building in facilities for early discussion.
- Training and case studies (internal and external): In circumstances where collaboration has worked successfully, this should be reinforced through training and use of case studies. Claimant and defendant representatives might look for opportunities to work together through joint training sessions or forums to see what can usefully be learnt from the other or better understood from the other’s perspective.
- Share good and bad examples (the latter without confrontation or criticism): The benefits of learning through this medium are self-evident.
- Build from common ground (e.g. patient safety): Parties will not be able to agree on everything, but it is normally possible to identify areas or topics from which it is possible to build consensus and rapport.
- Avoid exclusion or exclusivity: If something is working or at least worth exploring, excluding other claimant or defendant representatives will slow the pace of change. It is in everybody’s interest that we look to improve the process for resolution of clinical negligence claims, and we are no doubt best placed to do so by working together.
We should all be fully committed to fighting our client’s corner, but this core professional obligation can be discharged whilst looking for areas of greater engagement and improvement in our practices with others. It makes sense and is what clients ultimately want in most cases. As Sir Charles Darwin observed “In the long history of humankind (and animal kind, too) those who learned to collaborate and improvise most effectively have prevailed.” Who would be a dodo in the clinical negligence world?