THE NUMBER of clinical negligence claims has remained fairly static over recent years. The NHS Litigation Authority’s annual report records 5,426 claims in 2006-7; 5,697 in 2005-6; and 5,609 in 2004-5.
However, the adverse incident rate is still high, which leads to the conclusion that many people are not pursuing remedies for their injuries.
Is this apparent reluctance a reflection of the hurdles that the injured claimant must overcome?
Usually, the first issue that any potential clinical negligence claimant will face is that of how to fund their claim.
The main funding mechanism for the majority of clinical negligence claims remains public funding, yet obtaining it requires the claimant to overcome two strict eligibility tests. First, satisfy a means test which excludes all but the very financially disadvantaged and, even when claimants meet the means-tested criteria, there is a cost-benefit hurdle that must be overcome.
For certificates issued after July 2005 the General Funding Code will apply, which states that even when the prospects of success are very good (80% or more), likely damages must exceed likely costs.
It is easy to imagine a situation where the claimant has a very strong case but the likely value of the claim is relatively low, resulting in LSC funding not being available and the claimant having to consider alternative methods of funding the claim, with the likely only option being to privately fund the initial investigation.
Before considering any other methods of funding, the claimant’s solicitor is under a duty to investigate the availability of ‘before the event’ (BTE) insurance. Such insurance often stipulates that the client has to seek legal advice from a firm of solicitors nominated by the insurer, thus limiting the claimant’s choice of representative.
It is the claimant who has the burden of proving the case, albeit to civil law standards.
In the context of clinical negligence cases the bar has been set high.
The court’s application of the Bolam test on negligence has provided much ammunition for the defendants because of the ‘respectable minority opinion’ approach and issues of causation – the hive of cases from Bolitho v City and Hackney Health Authority [1997] 3 WLR 1151 to Gregg v Scott [2005] UKHL 2, [2005] 2 AC 176 have muddied the waters.
Levels of compensation An award of damages is the only remedy available to the successful claimant.
Often, claims are settled on a ‘commercial basis’ with no admission of liability. By definition, when claims are settled in this way the claimant is not receiving the full amount of what is sought, and has decided to compromise their claim on the basis that they feel the risks of pursuing the matter further are too great.
This raises the question of whether the current system meets the House of Lords test of providing full compensation to the injured claimant.
The House of Lords majority decision in R v Gloucestershire County Council and another ex parte Barry confirmed that the local authority is entitled to take into account its own resources in assessing whether – and if so, how – to meet the needs of the individual.
The income and/or capital of the claimant’s partner is also open to assessment by the local authority and can be taken into account, as can any income and/or capital the claimant may receive which is not derived from his/her personal injury award.
The situation is therefore not as straightforward as the defendant will no doubt contend. If an assessment is undertaken and a need is identified, it does not automatically follow that that need will be met by direct payments. The true position is much more complex and uncertain.
But there is a glimmer of light. Periodical payments and indexation have been the focus of a number of recent cases. In Thompstone v Tameside & Glossop Acute Services NHS Trust [2006] EWHC 2904 (QB) the court refused to apply RPI to the periodical payments and chose instead to apply the 75th percentile of ASHE 6115. ASHE 6115 is a measure which specifically records changes in the levels of earnings of care assistants and home carers, and is historically much more favourable to the claimant.
Several cases followed suit, and while they represent something of a ray of light to the claimant, they are all being appealed to the Court of Appeal and the eventual outcome is awaited. Let us hope that this positive position is upheld.
High hurdles It can be seen that the claimant seeking to prove a clinical negligence claim has very high hurdles to overcome. More needs to be done to redress the balance. The system as it currently stands does not offer a level playing field for the injured claimant.
This article may well sound like a rant from a claimant’s solicitor, but it is not the solicitors’ interests that are considered here but rather the rights of the injured and the interests of justice.