Comments on our information, clinical negligence or medico-legal issues generally can be emailed to firstname.lastname@example.org
Mark Harvey of Hugh James, Cardiff writes:
Dear Mr Hall
Re Medical Litigation – May 2003 – Issue 5
I was interested to read the latest in your series of articles in relation to the thorny issue of the success rates of specialist solicitors dealing with clinical negligence cases.
My own practice provides clinical specialist advice and representation to people throughout South Wales and indeed I believe that we have more members of the specialists panels than any other practice in Wales (four). Not only do we provide representation under Community Legal Service Funding, but we do also endeavour to represent individuals under Conditional Fee Agreements wherever possible and indeed we frequently are referred cases from other firms with panel members who are not prepared to carry out this sort of work. We do in fact carry out a major amount of Conditional Fee work in all areas of litigation. (Incidentally I am sorry if this is sounding like an advertisement it is not intended to be).
There are two problems that bother me. The first is in relation to your concerns about the success rates of solicitors. In keeping with many specialist firms probably as many as 30 to 40% of the new enquiries that we receive we do have to reject and more often than not they are cases which had the clinicians spent the time explaining the adverse outcome to the patient would not have resulted in an enquiry anyway. Of the remaining cases that we take through we believe that our success rate is as good as anyones. That is through proper risk assessment which I do think is completely distinct from “cherry picking”.
However we are dammed if we do and dammed if we do not. It is I think perfectly possible to produce success rates of in excess of 80% (and bearing in mind that the national success rate on ordinary road accidents is only around 87%) by identifying a discreet category of adverse outcomes where it is almost inevitably possible to determine a winning case. I think particularly of orthopaedic injuries and by excluding cerebral palsy or tumour and cancer related issues. The reality is that if we are going to try and endeavour to provide proper access to justice for victims with adverse outcomes then it means taking on cases which are potentially more difficult with the result that our own success rate may well be reduced. I cannot comment upon the Manchester firm example that you give save to say that you have to recognise that if public funding is available as a proper public service then inevitably claims that are not ultimately successful will be taken on. As I am sure that you are perfectly well aware the vast majority of cases that get into difficulties seem to arise from causation difficulties rather than demonstrating a breach of duty on the part of the clinician concerned.
You give the impression that public funding seems to be a licence to print money which encourages firms to take on cases without proper thought processes. Even a brief examination of the economics of this demonstrates this to be a foolish indeed eventually doomed practice. Public funding is provided at a risk rate of £70 per hour. Even for practices in South Wales that means that the work is being done at a loss and the only way in which the case can be run profitably is that it is successful. Therefore it is simply not in the interest of firms to run cases without good reason or merit.
Your description of funding for primary investigation looks perfectly satisfactorily until one examines carefully what happens when it is necessary to issue proceedings when the Claimant becomes for the first time at risk as to paying the Defendant's costs and alongside a Conditional Fee Agreement will need to have an After The Event Insurance Policy to give them full cost protection from their opponent. You mention in your article that it "can be expensive but Legal Aid could be extended to assist those in real need". In practice it is not only expensive it is not regularly available. We have had many cases that we have had positive reports and opinions on and have been unable to obtain insurance. We have also had many cases where Insurance is offered where regularly the Claimant is being asked to meet premiums in excess of £3,000.00. It is not necessarily a question of those "in real need" but even "little England" those with a moderate amount of savings or average income.
Let me give you by way of an example a recent case in which an elderly lady who is very disabled as a result of negligent surgery (for which we have a very positive report from a leading specialist supported by positive advice from senior specialist counsel). That client was asked to pay a premium of around £3,500.00 for only "12 months" cover and for an adverse costs order of £25,000.00. If we cannot get the case completed within 12 months (and it has to be said the Defendants and indeed the court are not seeking to help us with speed) then she will be required to pay a premium of almost the same again for the next 12 months. That was the only premium that we could obtain.
There are many firms including my own who do genuinely seek to provide access to justice to all, and who will seek in doing that to provide Conditional Fee advice wherever possible. Our success rate will never be the best because we are not prepared to "cherry pick", but equally there are many cases where we are prepared "to put our money where our mouth is" if we cannot get the After the Event Insurance Industry to assist us properly.
As is so often the case, many of the problems could be dealt with by an early explanation by the clinician of the adverse outcome; more realistic and less defensive attitudes on the part of those representing clinicians; and dare I say it a reversal of the burden of proof so that the adverse outcome has to be explained. However I expect that is an argument for another day!.
Once you have had an opportunity to review this letter I would be happy to append it to your web site with your permission.
I do enjoy your publication which is well read by our practitioners.
From: Jenny Robertson 01 July 2003
I have worked extensively as a journalist in the UK, however I was obliged to give up work when our daughter, then aged 8, suffered from serious complications following what should have been a relatively simple operation.
My experience of pursuing this case through the legal system (an ongoing situation) is that the whole medical complaints/medico-legal system in this country needs a complete overhaul. It is currently, in my experience, hugely rigged in favour of the medical profession and it is virtually impossible to obtain unbiased second opinions or unbiased reports from 'medical experts'.
The legal aid system, which quite rightly exists to help gain compensation for children who have been the victims of medical negligence, is shamefully exploited by both lawyers and 'expert witnesses' who write the reports, gobble up all the money, then leave the victims high and dry with nonsensical reports and no compensation either. It is nothing short of a scandalous waste of public money. Not only that, the NHS trusts, who will fight tooth and nail even the most obvious cases of medical negligence, are also shamelessly wasting taxpayers money.
The result of this may well be, in the short term, to restrict compensation payments to victims of medical negligence. However, in the long term it means that the medical profession is not accountable for mistakes. Therefore, in the long term, there is little incentive from the medical profession's point of view, to improve performance. This leads to more rather than less money being wasted as it leads to enormous extra costs in terms of extra hospital admissions, extra operations etc. A system of no accountability means there is a system where there is no quality control.
Our daughter's problem could have been dealt with with one hospital admission, one or at most two operations and a protracted course of antibiotics. Because her treatment was sloppy, and probably because staff were looking at short-term considerations (ie: free up the bed as soon as possible, limit the antibiotic course, minimise the follow up care) she was incompletely treated and this lead to years of complications. In total she had three emergency admissions as an in-patient, a two week inpatient stay at Great Ormond Street and countless other treatments and appointments at Great Ormond Street. Her treatment should have cost the NHS (ie: you and me, the British tax payer) well over £10,000 just in terms of extra in-patient stays, extra operations etc. And that's without factoring in the cost of extra suffering to our daughter and to all the family which, of course, is so hard to put a price on. Of course, we are most certainly not alone in all this. We are most certainly the proverbial 'tip of the iceberg'.
The long-term result of this is that an unacceptably high number of 'adverse clinical incidents' continue to happen - and the hospitals/professionals involved are not made accountable. Accountability is a necessary force for adhering to good standards. While the British public generally sees complaints against the NHS as somehow unfair, and views litigation as 'taking money away from the NHS' this is actually a very short-sighted view that allows carelessness and bad medical practice to continue unchecked. The threat of litigation, and a robust, unbiased complaints procedure, can be the most powerful disincentive to poor performance! Look at the airline industry - we don't put up with sloppy performance there, so why should we in the health service.
Whether victims go up the offical NHS complaints route, or through the legal route, it is currently unacceptably difficult to gain an honest account of what went wrong, and receive compensation for it.
Our experience suggests that the medical experts who write reports will bend over backwards to exonorate their colleagues. We have had three reports written. All three have managed to avoid the pertinenet factors of the case. It is as if they have been written for the NHS trust involved, not the patient! Our lawyer is remarkably reluctant to press them with difficult questions. We can only conclude that our lawyer and the 'experts' are colluding. When we objected to our lawyer that the reports all appeared to be so biased in favour of the medical profession, her response was: "All I can do is choose an expert from our database of experts. They are experts who are experienced in writing medico-legal reports and they have signed a declaration that they are independent." Hmm...experienced at writing reports for NHS trusts no doubt. We notice with interest on the c.v of one of our 'experts' that he worked for five years for a major NHS trust, dealing with medico-legal matters and complaints - no conflict of interest there, then!
Perhaps the way forward is to encourage the mediation route much more. Don't know what the lawyers would have to say about that though.
Mediation: A plea for sanity By C Lewis
Of course mediation can serve a purpose. But not in all contexts. Why cannot the powers that be recognise this? The current fad, no doubt orchestrated from on high, for sending all medical cases out to mediation, though to the great delight of the mediators who otherwise would be less gainfully employed, is a total waste of time in any medical claim where the purpose is to obtain substantial compensation rather than an explanation and an apology.
I have made this point constantly ever since mediation became the new buzzword. Roger Wicks wrote a full article some time ago in this journal to the same effect. Fairly recently we printed a report from a well known medneg solicitor which was, in effect, a favourable review of a mediation of one of his cases. I do not doubt a word he wrote, but his case was just the sort of case where mediation between parties in entrenched or at any rate delicate or somewhat emotional positions can be useful. His client was not after substantial compensation. The case was not about money primarily, but, like so many, was about understanding, explanation, apology, assurance that the hospital would do better in the future. The main point the solicitor made, repeated several times, was how nice and caring the mediator was. I am sure that is right. But nice and caring isn't going to do anything for a large claim handled by experienced solicitors on each side. It is almost unheard of in such cases for the lawyers not to have a reasonably good relationship with each other. They are perfectly capable of talking their own language and sorting things out and settling matters as much as is possible.
Bear in mind, also, that the NHSLA is behind the defence solicitor in these cases. The NHSLA, hard-nosed, but not unreasonable for the most part as they are, know perfectly well what they are willing to offer and what they are not willing to offer. To go and spend a few hours in separate rooms with a mediator, who will have far less experience of medical claims than the solicitors, running to and fro between the parties is pointless. A round table meeting between solicitors and counsel is a far more effective use of funds than engaging a mediator. The lawyers are well able themselves to do all that a mediator might do - and more. How else have we been settling almost all our medical cases for years? Month after month we talk to, often meet, the other side to discuss the case on a relatively informal, and always an amicable, basis. Innumerable cases are settled this way. The only ones that nevertheless go to court are the genuinely unresolvable ones. And a mediator is not going to help there.
Why can't the powers that be understand this? Because they are ignorant? Probably. Because they cannot be bothered to think about it and make the necessary distinction between cases that mediation might well help and those it clearly won't? That, too. They are too caught up in their blinkered fantasy that mediation will settle cases and so save a lot of money. It won't. It will, in the larger medical cases, merely waste time and money.
Why am I writing this polemic again at this time? Because I have just had yet further proof of the validity of the point I am making. A solicitor who instructed me in an Erb's palsy case (both she and I have handled many such claims) was compelled to undergo a three hour mediation on the claim. The parties had, as so often in this type of case, taken strong positions on the issue whether the injury to the brachial plexus had been caused by negligent traction at birth on the one hand or on the other had been just one of those things that could not have been avoided. The defendants had put forward the usual arguments, including the unlikely theory of propulsive forces of labour. The lawyers on each side knew exactly what their respective positions were. Though in substantial disagreement, they were talking to each other sensibly and courteously. The NHSLA clearly had a firm view about the claim. Were they, or were we for that matter, about to change our position thanks to the intervention of a mediator? Hardly!
The claimant's solicitor found the process to be utterly pointless, as indeed she had rightly told all concerned when it was first mooted. Her strongest impression of the management of the mediator was that he was anxious to convey to her that the defendants were urging her to drop the case and that she should read what a judge had once said in one case about the unsatisfactory nature of the evidence given in that case by her expert (incidentally an expert of great experience and stature, for whom numerous judicial plaudits can readily be found). Not a suggestion of the defendants offering anything or budging one inch. That would not be a criticism of them were it not for the fact that it was they who had been pressing for mediation all along!
What a farce!__________________________________________________________________________________________________________________
(July 2003) Roger Wicks, of Gadsby Wicks, writes:
In the May edition of Medical Litigation, Geoffrey Hall suggests that Legal Aid is helping to support under-performing solicitors who are members of the Clinical Negligence Panel. I agree. But I disagree that Legal Aid should be restricted to the investigation of clinical negligence claims. In my view, the time has come to withdraw it altogether for clinical negligence cases.
The primary objective of publicly funded Legal Aid should be access to justice for all members of society. But the present system does not do that. When it was originally set up in the 1940s, eligibility was targeted to 80% of the population. But now, less than 30% are eligible. For most, Legal Aid does not (and has not for many years) provided access to justice.
Fortunately, there is a solution. Conditional fee agreements do work - even in clinical negligence cases. Until their introduction, most people were prevented from seeking redress because of the expense. A case that goes to trial may last a minimum of five days and a losing claimant will have both sides' costs to pay. It is difficult to see how a potential liability of less than £100,000 can be avoided, and very few people can afford that.
So it is not difficult to understand why until recently this litigation had to be conducted almost exclusively with Legal Aid. In the 80s and 90s it paid for solicitors to learn how to carry out clinical negligence litigation. (This was the era of "earn while you learn".) Until then all the expertise for dealing with clinical negligence cases rested with defendant solicitors who were instructed by the medical defence organisations.
But this situation will not continue. The Lord Chancellor only gave clinical negligence a temporary reprieve from withdrawal of public funding. It is likely that it will be withdrawn (except perhaps for investigative help) within the next few years, and in the meantime the Government is doing what all Governments do when they want to withdraw a service. They make it less attractive to users. First, financial eligibility was reduced and public funding made more difficult. Then bureaucracy increased, so making it less attractive to solicitors.
This should not pose a problem though, because there are now a number of claimant solicitors who have genuinely specialist skills in acting for claimants. So although it could once be said that a claimant solicitor would not know whether or not a client had a good case until he had an expert report, it is no longer true. It is necessary to obtain a report from an expert before a claim can succeed, but not, in most cases, to determine that it is a bad case.
It astonishes me that solicitors should still be charging their clients for an initial investigation. What they are doing is charging their clients simply for deciding whether or not they are prepared to do business with them. That cannot be ethically correct. A specialist solicitor should be able to screen new enquiries to decide whether they have some chance of success. The experience of most who do is that only 10% to 20% of new enquiries are worth taking on.
Nor should we be overly concerned at losing cases. Success fees are there to compensate for the cases that are lost; therefore you must be prepared to lose cases. You will want to keep them to a minimum but you cannot avoid losing cases altogether.
The trick is to manage the risk so cases are lost early, before too much time and money has been spent on them - working each case thoroughly but being willing to drop it when a problem develops, instead of heroically trying to breathe life into it or delaying the day when the client must be informed that the case can go no further.
So put simply: if you apply a 100% success fee you will be able to lose 50% of your cases. But a specialist should be able to keep the lost cases to less than 50%.
It is often said that insurance for clinical negligence CFAs is both difficult to obtain and expensive but there is a secret here that needs to be made public. Some specialist clinical negligence solicitors are beginning to deal with cases on a CFA using delegated insurance and disbursement funding schemes. Those solicitors are using their expertise to provide true access to justice. This is the future for funding clinical negligence claims.
For those solicitors really interested in providing access to justice for their clients CFAs are a very good system. It is far superior to Legal Aid, where statutory charge costs are such that it is no longer sensible for any client to run a case with LSC funding - at least if they have to pay a contribution.
The NHSLA and the defence organisations complain at the cost of paying success fees and insurance premiums, but they overlook that under Legal Aid they always met their own costs, win or lose, because of the costs protection enjoyed by legally aided claimants. Now, they can recover their costs if they succeed. They can also avoid paying success fees and premiums by working to the spirit of the pre-action protocol and paying viable claims at the outset.
So we should all welcome CFAs. The Lord Chancellor (or whoever replaces him) can safely withdraw Legal Aid for clinical negligence. By doing so, he will encourage more solicitors to use conditional fees and so provide access to justice for the majority of the citizens of this country who, whilst helping to pay for Legal Aid, are excluded from its benefits.
By Roger Wickes, partner Gadsby Wicks, Chelmsford
Note: Gadsby Wicks, which was established ten years ago to specialise in the handling of clinical negligence claims only is the only such firm in the country. For several years Roger Wicks ran the Law Society's Clinical Negligence Panel and he and his partner, Gillian Gadsby, are acknowledged as among the leading experts in this field. The firm has a policy of making no charge for initial investigations (many firms expect clients to pay up to £1500 or more which many cannot afford to do).________________________________________________________________________________________________
An Email from Gerry Ferguson
November 10, 2003 19:16
I think we need to be quite careful to understand what we all mean by 'solicitors who WIN 80% of their cases, or a firm that LOSES 80%'. In my experience, the easiest way to achieve an 80% success rate is to ruthlessly cherry-pick cases and turn away any client who does not have a simple, readily identifiable claim. In that case, a win rate of 80% may be nothing to be proud of at all, except as vindication of an effective business model.
Other firms apply a cab rank principle. In that case, the clients who are told to go elsewhere by the cherry-pickers are very grateful indeed to find a solicitor who is prepared to do their absolute best for them or their child, even if at the end of the day, sometimes the claim does not proceed, once a full investigation has taken place.
If you define obtaining a certificate, or entering into a CFA 'blind' for a very complex investigation and then failing to persuade the LSC, or ATE insurers, to fund a claim is per se a measure of failure, then most clients injured by a medical blunder would rather go to a solicitor who is prepared to try for them, rather than turn their back on them. The cherry-picker will turn away clients because they are stigmatised, or do not have English as their first language, or were injured in the private sector, or by an alternative practitioner, or they have mental health problems, or a case involving more than one specialism, or a complex issue of causation.
For cab rank firms to obtain an overall 80% success rate, taking into account all investigations, is simply not realistic, because they do not screen out the difficult cases. Look at Leigh Day, as a crusading firm they lose a lot of high profile claims, but are you seriously suggesting they do not put everything on the line for all their clients?
If the measure of success is only calculated in respect of cases that proceed beyond the investigation stage to become cases settled under the pre-action protocol, or following issue in the court, then a different picture may emerge, because again, to get to the stage where a case enjoys the confidence of funders sufficient to allow a case to proceed does not necessarily show anything more than that the solicitor chose the client wisely at the outset.
You cannot tell from bare statistics whether the solicitor has taken over a case seriously compromised by another firm, or firms, and won against the odds. You cannot tell whether the solicitor has fought tooth and nail with funders to allow the client to present his case, or backed his judgment with a CFA, and then succeeded where a less resilient, or less altruistic, solicitor would simply tell the client he does not have a viable claim.
Later on, another solicitor may give the lie to that assertion by taking on the rejected case and winning it for the client. You can't tell which firm has the best statistics in those scenarios, but I know where I'd rather go as a client.
The Editor responds:
The Access to Justice reforms could be described as "the cherry-pickers' charter". One patient, Ken Woodhouse, contacted us to write about a leading firm of solicitors in Manchester which, he was told by many, was the "real hot shot firm" in clinical negligence and seemed to be regularly featured in the major Manchester evening paper. He explained the situation over the phone. Two weeks later he received a letter telling him they would not take the case. Next he talked to another, smaller firm. He had an immediate free interview. The result? At the time he wrote to us his counsel advised that he had an 80% chance of a six-figure compensation. A lot of hard work and time had been put into the case and he had a feeling that the larger "flash" - Ken's description - firms are not so interested in such cases.
Ken did feel that "cherry picking" took place in his case. For example, he said, the only case of any similarity happened in 1958, involving lots of searching etc. (Sorry for a commercial break, but this indicated to me the need for Ken's present solicitors to obtain a copy of our Medical Litigation on CD Rom.)
CFAs in clinical negligence cases can be very risky - probably too risky for most of the panel firms from what I have heard - and it is understandable in any business activity that the financial risk should be kept as low as possible. But this is bound to result in some cases, unable to qualify for public funding, being turned down even though the solicitor knows that they will probably succeed. Can anything be done for these rejects?
We would welcome views on this issue - If patients with reasonable claims are being turned away by panel solicitors to keep their success rates up this is a serious matter for concern, possibly investigation by the Lord Chancellor's Department and Legal Services Commission. Otherwise one has the distinct impression that justice is not being fully done, despite the government's reforms. Perhaps patients should be referred to non-panel firms with established success records in litigation. Or even firms who would consider assisting them as litigants in person. We sent a round robin to our leading subscribers and now have several firms who are prepared to do so. Let us know - and tell patients about it on our patients' website www.medicalclaims.co.uk.
We are most grateful to Mr Ferguson for contributing to the debate on success rates. He is a partner of Withy King solicitors, who subscribe to www.medneg.com and are on our patients' website www.medicalclaims.co.uk with offices in Bath, Marlborough, Swindon and Trowbridge._________________________________________________________________________________________________
The Ledward Scandal
Clinical negligence - informing the patient
On February 18, 2004, Mrs Justice Hallett ordered an investigation into claims for damages, totalling millions of pounds, by 59 women who claimed they were sexually assaulted by the disgraced gynaecologist Rodney Ledward.
The judge said that she was enormously concerned by the conduct of the women's solicitor, a Mrs Jane Loveday, who, it was reported, made up to £2 million from legal aid in running the cases.
The women claimed that they were assaulted by Mr Ledward in NHS hospitals in Kent over a 15-year period. The sexual allegations only came to light in July 2001, nine months after Mr Ledward's death, from cancer of the pancreas, at the age of 62. He had been struck off by the General Medical Council in 1998 after being found guilty of bungling 13 operations.
At an earlier hearing, John Grace QC, for the defendants, had said that the sexual allegations were made only by clients of Mrs Loveday. The fact was, he said, that 60% of her clinical negligence claimants subsequently went on to allege sexual assault.
In a costs capping application by the defendants in November 2003, reported in full only by www.medneg.com [see Ledward Claimants v Kent & Medway Health Authority MLC 1086 (QBD: Hallett J, sitting with Master Hurst, November 3, 2003)], Mrs Justice Hallett capped the claimants' costs at £395,000 saying that the costs claimed appeared to be disproportionate: The hours had been inflated by a considerable amount beyond what was fair and reasonable; and it was quite clear from the analysis of work already done and still to be done that quite extraordinary amounts of time had been claimed.
Legal aid was then withdrawn, shortly before eight lead cases were due to go to trial for a six-week hearing. The defendants, East Kent Hospitals NHS Trust, Kent and Medway Health Authority and South East London Health Authority, Mr Ledward's former employers, had spent over £700,000 defending the claims.
Angus Moon, counsel for the defendant health authorities, alleged that one of Mrs Loveday's clients claimed that her original statement had been redrafted to include an allegation of rape, even though the client had refused to sign it and had deleted the alteration. That, said counsel, could have civil and criminal implications if Mrs Loveday had knowingly signed a false statement. She had been off sick since December 19 and had indicated that she would not be at court or represented. Her office in Launceston, Cornwall, had closed and she was now living in Deal, Kent, where she also had an office.
Another woman, he said, had alleged that she made it clear that she did not want to go ahead with her claim, yet her name remained on the list of claimants, putting her at risk of having to pay costs.
The judge directed that the matter should be referred to the Law Society's Office for the Supervision of Solicitors (OSS). She ordered Mrs Loveday, who, she said, on her own evidence was not fit to be conducting any litigation, to pay costs of £31,000 personally for not notifying the defendants quickly enough that the claims had foundered.
One of the remaining claimants told the judge that she had put her utmost trust in the firm and now felt nothing but contempt for it. She said that the pressure she had been put under had led to two suicide attempts. Ironically, one of Mrs Loveday's clients was seriously considering suing the solicitor for compensation.
This case, as Mrs Justice Hallett observed in the costs capping application, was a classic example of litigation, driven by the lawyer acting for the claimants, in which there was a real risk that costs had been and would be incurred unnecessarily and unreasonably.
Mrs Loveday qualified as a solicitor in 1987. She first became involved in this matter in relation to clinical negligence claims. She was a single-practice solicitor based in Launceston, Cornwall. When Mr Ledward was struck off, she advertised in Kent for potential clients. It was immediately apparent that with a solicitor based in Cornwall and clients living in Kent various problems were likely to arise. The majority of the witnesses lived in the South East and the trial was to take place in London.
The central point in this sorry affair is that Mrs Loveday was an accredited solicitor purporting to have specialist expertise. Does this then indicate a systemic weakness in the legal aid franchise system? Mrs Justice Hallett herself said that she was concerned about what inquiries the Law Society had carried out before allowing Mrs Loveday to be placed on the panel of approved experts in clinical negligence, thus obtaining a franchise to do legal aid work in that speciality. It was not just the conduct of a litigation solicitor which caused her enormous concern, but how she got through what should be stringent processes. "The Law Society", she said, "must act to ensure that no one else is subjected to such conduct."
So, what do you think will happen when Mrs Loveday's case is referred to the Office for the Supervision of Solicitors? What, if any, steps will the Law Society take to discourage similar speculative litigation - and Mrs Loveday's does not stand alone - where the lawyers benefit, from fees sometimes bordering on the obscene, yet clients exacerbate the physical suffering they have already endured?
Because over the past two decades increasing numbers of practitioners have, quite frankly, simply dabbled in this work without gaining real experience. Which is why, although today's Law Society's clinical negligence franchise holders may well number 200 or more, the bulk of the cases are handled by, probably, only fifty or so firms, the majority of which are our subscribers. The Legal Services Commission know it. The specialist ATE insurers know it. Anyone seriously involved in clinical negligence knows it.
But injured patients and relatives do not.
Seeing advertisements promising, or implying, bonanza payouts they may well leap into the laps of solicitors who do not have the staff, facilities or experience to handle complex medical negligence issues yet, through their membership of the franchise will be paid out of public funds for running hopeless cases by a Legal Services Commission whose gullibility must, on past showing, be questioned. Mrs Loveday's antics might never have come to light if that doughty defence lawyer, Bertie Leigh, of Hempsons, had not made his costs capping application. What was the LSC doing to check where public money was going?
In a letter published in The Times on April 21, 2003, we submitted that a substantial saving on costs to the NHS could be achieved if legal aid were restricted to the initial investigation of medical negligence claims. Those claims with a reasonable prospect of success should then proceed on a "no win, no fee" basis. This did meet with some protest. From one firm actually. Described by its head as "one of the smaller firms with a clinical negligence franchise". (On our Confidential Index of Solicitors we could, in fact, trace only one clinical negligence case run by that firm. Which it lost.)
One of medneg's leaders, Mr Roger Wicks, partner Gadsby Wicks, went much further: The time has come, he wrote in July 2003, to withdraw legal aid for clinical negligence cases (see our ARTICLES database).
We feel that might be a step too far: the medneg claimant already has an uphill task, legally and procedurally. One wonders how many cases, with reasonable prospects of success, would simply not be taken on. Admittedly, our fears may be groundless: the whole business of running clinical negligence cases on "no win, no fee" has, predictably, become an arcane art in itself. Just consider a system which is based on the claimant's solicitor winning some and losing some - just to keep success fees up.
Nevertheless, it was encouraging to read that, almost a year later, the Legal Services Commission has taken up my proposal and wants consultation on whether, in clinical negligence, cases should receive public funding for the investigative stage only and CFAs should be used thereafter.
This might curb the activities of the likes of Mrs Loveday but there remains a need for injured patients and relatives to be advised by those solicitors who genuinely do have the experience, information and resources to provide a professional, caring service in this complex, emotive and politicised area of professional liability.
Medical Litigation Online is the only organisation which provides, through www.medneg.com, the top medical negligence website on the internet, free information and direct access to firms of solicitors throughout the UK who are provided with the largest online database of Medical Litigation Cases, Articles and Confidential Indexes of Medical Expert Witnesses and Counsel.
These firms provide excellent legal services because they have this unique information, essential needs for success in litigation.
The dabblers and opportunists, who are far more interested in making as much money as possible through legal aid and "cherry-picking" no win, no fee work, needless to say, do not bother to take advantage of these services. They do not subscribe and we do not want them.
But if you, or your child, were seriously disabled in a medical blunder, which firm of solicitors would YOU consult?___________________________________________________________________________________________
NAAZISH FAROOQ INQUEST
Leeds 10th to 14th January 2005 and beyond
By Paul Balen
1. Naazish Farooq, was born on 12 July 1996. Her parents Mohammed Khan and Safia Sultan live in Bradford.
2. In September 1999 Naazish was admitted to St James Hospital, Leeds where she was diagnosed as suffering from cancer and began a course of chemotherapy.
3. Her treatment included the administration of potassium chloride through a dialysis machine. Each time the infusion bag is changed a blood test should be carried out to obtain an accurate reading of the potassium level in the blood.
4. An excess of potassium can cause heart problems, heart attacks and ultimately death.
5. In the early hours of 8 October 1999, something went catastrophically wrong with the administration of potassium to Naazish. It seems an infusion bag was put up containing a grossly excessive amount of potassium. It is likely that this happened because no blood test was carried out before the bag was made up; the nurse failed properly to mix the bag when she added potassium to it, and her actions were not checked by another nurse as they should have been even though that nurse signed to say she had done so.
6. Shortly afterwards Naazish suffered a heart attack. Attempts were made to revive her during the course of which a blood gas reading was taken. This disclosed an astonishingly high potassium reading of 18.9, which compares with a normal level of 3-5. (A level of 9/10 would be enough to kill.) Twenty minutes later, a second blood gas test disclosed a potassium level of 13.4. Naazish died shortly afterwards.
7. The doctors certified the cause of death as cardio respiratory attack and cancer totally ignoring the findings of grossly abnormal levels of potassium. The hospital also did not disclose these findings to the Coroner's officer when he authorised the release of the deceased's body which, according to Muslim law, had to be buried within 24 hours of her death.
8. After her burial a doctor mentioned her death to the police who applied to the Coroner for her body to be exhumed. The application was granted and a post-mortem was carried out. The pathologist concluded that her death was consistent with potassium poisoning.
9. After an investigation lasting 2 years the CPS decided not to institute any criminal proceedings.
10. One of the independent experts consulted by the police, concluded that there was an external source of potassium infused into Naazish that led to her death and that the dialysis solution was the most likely external source of the potassium. He summarised his view as to the care which Naazish had received as follows:
"Clinical governance and ensuring the quality of care in the Paediatric Intensive Care Unit has not been demonstrated. Mistakes had been made on the day before Naazish's death and Sister Sutton's grossly negligent actions were not recognised or challenged. The evidence of the widespread improper practice by many nurses on the Intensive Care Unit in respect of adding potassium to dialysis bags and checking additives demonstrates inadequate training and reassessment of practice. The deficiency in the management of potassium replacement and inadequate clinical governance ensuring quality of care represents gross negligence by the St James' Hospital Trust. An intervention at an earlier stage could have prevented Naazish's death in my opinion."
11. In February 2002 the Trust admitted legal liability for the death but refused to pay for the relatives to be represented at the Inquest.
12. The Hospital Trust offered a compromise, if the family were not represented at the Inquest, neither would be the Hospital. The family's solicitor protested that this would mean that a detailed inquiry could not properly be held and asked the Trust to refer the matter to the Department of Health.
13. The family's solicitor Paul Balen of Freeth Cartwright LLP wrote to the then Secretary of State for Health Alan Milburn on 26 March 2002 claiming that the Department of Health was under an obligation under Human Rights Law to ensure that the family could participate in an effective official investigation into the death of their daughter.
14. The Department of Health replied on 8 July 2002 refusing the request. The Department for the first time revealed that there had been a number of "separate investigations" at the hospital regarding the care and treatment Naazish received before she died. Details of those inquiries had not been provided to the family or to the Coroner.
15. Court proceedings were commenced against the Secretary of State seeking an order under the Human Rights Act that the Department of Health fund the parents' representation at the Inquest or order an independent inquiry into the circumstances of Naazish's death.
16. On 10th October 2003 the Court of Appeal (Khan v Secretary of State for Health) ruled in the parents' favour and ordered the Government to fund their legal representation at an inquiry into their daughter's death.
17. The Government however at the last minute refused to provide sufficient money for the family's QC Philip Havers to take the brief even though he had taken the case up to the Court of Appeal. The Khan family's solicitor Paul Balen is therefore representing the family at the inquest. The Governement have however funded Robert Seabrook QC to represent the Hospital Trust. Various Doctors are represented by Robert Francis QC; Edward Faulkes QC and solicitor Michael Ryan whilst Sally Smith QC represents a nurse. The Coroner is advised by his own QC Simon Jackson who does not ask questions.
18. The Inquest resumes on 23 May for a further week.
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