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Friday, 26 May 2017

Insurers, insurers, insurers

We have all come across seriously questionable behaviour from insurers over the last few years. 

But I have today, come across a letter that is so alarming it deserves a blog!

EAD are acting for a client who suffered an accident at work in April 2016. He suffered a nasty shoulder injury. He has not been able to return to work. He has had on-going treatment including surgery.

He is a member of a Trade Union and was referred to EAD by the union. A claim was submitted in May 2017, almost 2 full years within primary limitation.

The insurers for his employers have responded as follows –
‘We are genuinely surprised to receive an injury claim from your client at such a late stage, as typically such claims are pursued within the first few weeks of the accident itself. We are of the opinion that this claim has the hallmarks of one borne out of active marketing and may not have arisen but for this. In our experience, a material proportion of late notification injury claims might be potentially exaggerated.
As such, to fulfil our obligation to our client/insured, we are obliged to seek your client's detailed reasons for the late notification of this claim.
As you are aware, Paragraph 6.6 of the Pre-Action Protocol for Low Value Personal Injury claims, states the Claims Notification Form can be signed the claimant's representative where the claimant has authorised the legal representative to do so and written evidence can be produced on that authorisation. Please therefore forward a copy of your client's signed authority form.’
They have refused to deal with it and simply advised that proceedings should be issued forthwith.
So there we have it.

Client suffers nasty injury. Seeks help from his union. His union refers him to panel solicitors. This is then alleged to be a claim acquired by questionable means and ‘potentially exaggerated’ into the bargain.

The mind boggles.

Thursday, 25 May 2017

Who is liable if a patient leaves A/E after wrong waiting time given?

I don't normally report on specific cases. But the recent Court of Appeal decision in Darnley v Croydon Health Services NHS Trust raises interesting questions about information given by hospital staff in relation to waiting times in A/E
On 17th May 2010 Mr Darnley was the victim of an assault and received a head injury. He was taken by a friend to the A/E Department at May Day Hospital in Croydon. The Receptionist took down his personal details. She also noted that he had had a head injury of about 1.5 hours duration. He reported that he was in severe pain.
The receptionist told him that it would be 4 – 5 hours before he was seen. This was wrong. He would in fact have been seen by a triage nurse within 30 minutes.
Mr Darnley waited for about 19 minutes and then decided to leave the hospital and to take some paracetamol , at home. He did not tell hospital staff that he was leaving. A few minutes later a triage nurse called him but he was no longer there. By 9.42 he had deteriorated and an ambulance was called. He was returned to the May Day. A CT scan revealed a extradural haematoma. He was transferred to St Georges Hospital, London for surgery. He suffered permanent brain damage resulting in severe neurological injury and significant disability.
The case against the hospital was there had been negligent delay in assessing him and also that he had been given wrong information about waiting time.
Guidelines published by NICE in 2007 said –
"1.4.1.6 All patients presenting to an emergency department with a head injury should be assessed by a trained member of staff within a maximum of 15 minutes of arrival at hospital. Part of this assessment should establish whether they are high risk or low risk for clinically important brain injury and/or cervical spine injury, using the guidance on patient selection and urgency for imaging (head and neck cervical spine)."
So it was, understandably, argued that failure to assess him within 15 minutes was negligent. However, it was agreed between the experts that 15 minutes to triage might not always be achievable and that this depended how busy the A/E Department was. They agreed that the department was probably very busy on this particular evening which was a Monday. They agreed that Mr Darnley should have been seen within 30 minutes at the latest. A triage nurse tried to see him within this timescale but he had left. This argument was rejected by the trial judge.
The judge also rejected the claimant’s argument that the receptionist had negligently provided inaccurate information in relation to waiting times. If the claimant had known that he would be seen within 30 minutes he would have stayed. The judge held that there was no duty on the reception staff to provide information about waiting times. It was not ‘fair, just and reasonable’ to impose such a duty. The provision of information by receptionists was a courtesy offered to patients but this was ultimately a matter of clinical judgment. The imposition of a duty of care in these circumstances might lead to a policy of evasive answers.
Even if there was a duty, the provision of inaccurate information did not cause the claimant’s injury. It was caused by his decision to leave.
The claimant appealed.
The Court of Appeal rejected his appeal by a majority of 2 -1. In relation to the duty to triage within 15 minutes Jackson LJ approved the following observation from the trial judge –
"What I am prepared to find is that it seems to me to be extremely unlikely that the triage nurses were not fully engaged that night. The alleged breach of duty is a failure to meet a tight target of 15 minutes by a factor of 4 minutes. I am not prepared to find that this amounts to a breach of a clinical duty of care. It is right that there must be a longstop, or the target becomes meaningless. The consensus of opinion amongst the experts is that the longstop position is 30 minutes. That seems entirely appropriate."
In relation to the provision of wrong information Jackson LJ said –
‘In the present case the gravamen of the claimant's complaint is not failure to inform. It is the giving of incorrect information by the receptionist. I have come to the conclusion that this is not an actionable misstatement. The receptionist took down the claimant's details and, correctly, told him to wait in the waiting area. When she added that he would have to wait for up to 4 or 5 hours, she was not assuming responsibility to the claimant in the sense of accepting responsibility for the catastrophic consequences which he might suffer if he simply walked out of the hospital. Foreseeability alone is not sufficient to give rise to a duty of care.
Nor do I think that it is fair, just and reasonable to impose upon the receptionist (or the defendant acting by the receptionist) a duty not to provide inaccurate information about waiting times. This would add a new layer of responsibility to clerical staff and a new head of liability for NHS health trusts.’
Even if there was a duty to provide accurate information about waiting times, the claim would fail because he had been told to wait and left the building without telling anyone.
At one level it does appear harsh that the severely disabled claimant receives no damages, despite being given wrong information about waiting times. Indeed McCoombe LJ giving the dissenting judgment observed -
'Here the hospital told this claimant that he would receive attention in anything up to four or five hours. That was incomplete and inaccurate information and, in my judgment, imparted negligently. The risks from head injuries were well known within the hospital. Equally, the foreseeability of patients at A & E leaving before being seen (as found by the judge) should equally have been known. It seems to me, therefore, that the reality of the triage system should have been imparted to this claimant in view of his presentation on arrival. The failure to do so was, in my view, on the facts of this case a breach of duty by the hospital.'
So the point is finely balanced. But the position as things stand is that a claim cannot be successfully pursued on the basis of incorrect information provided by non medical hospital staff - particularly where a patient decides not to wait.

Tuesday, 23 May 2017

Fixed costs - is Jackson shifting?

We began 2017 expecting the legal news to be dominated by whiplash ‘reforms’ and small claims. The announcement of a snap election brought all of that to a halt, although it seems highly likely that the proposed changes will be back with a vengeance in the near future.

This has shifted the focus of debate to Fixed Recoverable Costs – always a controversial topic.  At the beginning of May, the Consultation on FRC in Clinical Negligence Cases ended. I have previously summarised the proposals –


It is encouraging that the plan is limited to cases up to £25k although there is likely to be heavy lobbying from defendants to have that cap raised –


But the discussion is not limited to Clinical Negligence. As we speak, Jackson LJ is working on his report on FRC for all cases up to £250k. This review is expected by the end of July 2017. He has previously made no secret of his preference for FRC to be introduced across the board –


More recently he has appeared to abandon thoughts of a cap as high as £250k. Some are suggesting £125k but he himself has not said anything. At last week’s APIL Conference he acknowledged the difficulties of fixing clinical negligence costs in contested cases worth more than £25k. There is also talk of imminent news about fixed costs in hearing loss cases –


I have to say that I don’t think FRC are necessarily a bad thing in appropriate cases.

Payment based solely on hourly rates can present problems. An experienced and able lawyer might turn a task around in one hour. Another might need 3 hours to do the same job. But the second gets paid more. There is a temptation to feel we are somehow short changing ourselves if we do not rack up enough hours for doing something that was not particularly onerous. Of course the contrary and entirely reasonable argument is that some tasks are so complex that they will require work far and above what might be recoverable on a fixed fee basis. But if the fees are calculated on the basis of the swings and the roundabouts then this should not be a major worry.

I understand that most commercial clients have been demanding fixed fees for years.

What is most important is selecting the right cases. Cases worth over £250k are rarely straightforward. If they are to be introduced then a low start surely makes sense – such as the £25k figure proposed in Clinical Negligence.

Whether we love them or hate them (marmite anyone?), I think that there is now an inevitable tide which will see FRC introduced for most straightforward cases in the next couple of years. Firms should be planning ahead with this in mind. We should be lobbying for fees to be realistic and for the most complex and high value cases to be excluded.

stevecornforth.com



Thursday, 27 April 2017

Looking back at years of injustice for the bereaved

On Friday 28th April I will hang up my billing shoes. My fee earning days will be done as I move on to a new phase as a practice management consultant and trainer.

At times like, this you look back over the years and reflect on significant moments.

I can still remember a day in the 1980s when I came across a moment of injustice which still angers me to this day. I was instructed by the parents of a young student who had been tragically killed in a car accident. He was a passenger in a car driven by his friend and which crashed into a wall. No other cars were involved and his friend, who survived, was clearly at fault. At one level it was a clear cut case on liability.  

The injustice arose when we discussed the likely award of damages. The parents were clearly devastated. The son was 18 years and a few weeks old. I had to advise them that they were not entitled to any damages for their bereavement. That was my earliest encounter with the scandal that is the law of bereavement damages in England and Wales, which can lead to major injustice. And this injustice has never been properly resolved in all of my years in practice.

The entitlement to damages for bereavement dates from the Fatal Accidents Act 1976. It is a statutory entitlement to a fixed sum – currently £12,800.00. If that sounds shockingly low, there is worse to come. 

The only persons entitled to an award are a surviving spouse/civil partner or the parents of a child under 18 and they can only receive a single award – i.e £12,800 between them. do they share the pain of loss 50/50? This was why the parents in my case were not entitled to anything for their obvious bereavement; because he was marginally over 18. Nobody has ever properly explained to my why this arbitrary fact somehow lessened their bereavement.  Children who lose a parent, apparently do not suffer any bereavement that can entitle them to any damages. Siblings have no chance. 

There is no immediate sign of this changing.

The limiting of the award to an arbitrary figure has always been illogical and unfair. 

I once acted for the father of four young girls who lost his wife due to the admitted negligence of her local hospital. He was a devoted husband and father. I have rarely come across such a level of grief. He could barely discuss the case without dissolving into tears. He was suffering from a very high degree of pain and upset that surely deserved realistic compensation.

The time has come for all of this to change.

The Association of Personal Injury Lawyers is currently heading a major campaign on this very topic –

In Scotland, loved ones are treated with far more dignity. A broad range of relatives can claim - spouses/civil partners, parents/children, siblings, grandparents/grandchildren. Damages are assessed on a realistic basis having regard to such matters as the level of grief and sorrow suffered. Most importantly, there is no statutory cap.

Why victims south of the border cannot be treated with equal sympathy beggars belief.


We will see many promises from politicians over the next few weeks. 

A promise to ensure justice for those who suffer bereavement would be very welcome and is long long overdue…


Visit my new website at www.stevecornforth.com

Wednesday, 26 April 2017

Defendants push for high limit on Clinical Negligence fixed fees

On 1st May the Consultation of fixed fees in Clinical Negligence ends. The Government proposes the introduction of fixed recoverable costs in cases where the value does not exceed £25,000.00. The scheme is driven by the Department of Health. Nobody has explained why the Government Department which is, in reality, the Defendant in most cases, is to decide what that Department must pay out in cases where they are found to be at fault…

I have previously written about this on LinkedIn.


The consultation suggests a number of alternatives. It is fair to say that in those cases affected by the changes, the recoverable costs will be significantly lower than those with which lawyers have become accustomed. The proposal for experts’ fees is alarming in the extreme - £1200.00 in total for reports on breach of duty and causation. I cannot imagine experts who will be willing to work for those sort of fees.

Having said all of this I suspect the fixing of recoverable costs in lower value cases is inevitable. In an era of proportionality it is becoming increasingly hard to justify costs which are many times higher than the damages. A recent example of this is the case of Rezek-Clarke v Moorfields Eye Hospital NHS Trust. The claim settled for £3250.00. The Claimant’s solicitors submitted a bill for £72320.00 which was reduced to £26,200.00. Notable deductions were the ATE insurance which went from £32,000.00 to £2120.00 and the expert fees which went from just over £18,000.00 to £7500.00.


The proposed fees remain eye wateringly low. It is hoped that the Government – if it survives the election (!) will take note of the many responses to the consultation and come up with something more workable. The alternative that is that many Solicitors will be unable to take on such cases with its inevitable impact on access to justice.

But the big worry remains that the upper limit could go as far as £250,000.00. This was the original intention of the DOH. It is being strongly promoted by the Defendant lobby –


Alongside the present consultation we will soon see the report of Lord Justice Jackson who is known to favour the imposition of fixed fees for all civil cases up to £250,000.00. So will this proposal be overruled by Jackson!


This will be a major setback for victims of medical blunders. A Clinical Negligence claim worth £250,000.00 is not a low value claim claim. A victim who might receive damages at that level has suffered a life changing injury. They may not be able to work again and/or might need care for years. It is unthinkable that the government might consider putting a further hurdle in the way of victims. In the last few years they have lost the right to legal aid in virtually all cases. They have seen the abolition of recoverable success fees and most insurance premiums both of which have to be deducted from damages. Introducing draconian cuts in recoverable costs for cases up to £250,000.00 will inevitably deter many.

Politicians need to learn the value of justice and not just the cost.