An efficient operation

A rise in claims and a revamp of NHS litigation funding has transformed medical negligence into a fast-moving and thriving area of practice, writes Stuart Knowles. Stuart Knowles is a litigation partner in the Birmingham office of health care solicitors The Lewington Partnership.

There was a time when solicitors meandered their way through clinical negligence claims with no urgency. After all, everybody knew that the whole business was very complicated and expensive, so there was no need to rush, was there?

But now plaintiffs and defendants who cannot handle the action are likely to get left behind. Clinical negligence claims might be high profile, they might be expensive and certainly health care staff feel allegations of negligence personally, but there is no need for them to take years to come to a resolution.

Fast, fair and firm handling of cases is the order of the day, with parties keeping an eye on the cost to the public purse both through legal aid and the NHS coffers.

The first change came in January 1990 when NHS indemnity moved responsibility for funding clinical negligence away from doctors' defence organisations and into the hands of NHS defendants. It was the catalyst for the change.

In the early 1990s, the last of the NHS in-house legal departments were dismantled. Some merged into large practices. The message for the future of legal services was clear: get big, get niche or get out.

Today the NHS is developing a more sophisticated buying technique, looking for the best value in terms of quality and speed of provision. Lawyers have to be faster and more responsive. Their advice must be more detailed; more accurate and effective in getting results.

With an era of openness we expect more from our lawyers and the NHS. The number of clinical claims has trebled since 1988 a reflection of better informed patients who know when to complain and know what to do when they do not get a satisfactory reply. More claims have led to better risk management. With an instinctive urge to cut losses, health staff are keen to keep claims down and are driven to improve standards of care.

But, of course, higher expectations have also driven lawyers to look at their practice. Patients have a right to a prompt resolution of their claim and lawyers who do not provide it deserve the opprobrium they receive.

NHS lawyers must also recognise that public bodies and the legal profession have a duty to ensure that individuals get fair treatment.

And with clinical claim inflation fast outstripping price inflation (cost to the NHS is estimated at over £200m in 1997/98, excluding claims against GPs), it was only a matter of time before a central fund was created to support hospitals.

The National Health Service Litigation Authority has, for two years, funded major claims and many decisions are now taken by this special health authority charged with the job of managing actions across England. One advantage is the availability of central statistical information to guide case management and policy. Claims are driven by the need to find solutions that are fair, fast and which represent value to the NHS a logical development in the evolution of claims handling over the last 10 years.

This means that in the future, defendant lawyers will react faster and drive cases forward. Early settlements will be offered where appropriate and the unwary or unprepared plaintiff will face a well-judged payment into court to make matters interesting.

Early decisions will be made on defence and tactics as soon as a claim is pursued. Those cases clearly capable of defence will be taken to trial and, where the cause is lost, a decision will be made sooner rather than later.

The courts are hands-on now, in advance of formal case management. Many clinical cases are under direct control of district judges in Birmingham and London with regular reviews ordered and both sides obliged to justify the current position. The unwary or slothful solicitor will come unstuck fast.

Multi-million pound claims on behalf of the NHS are settling within 12 months.The figures may be large and the issues complicated, but the process is simple. Both plaintiff and defendant lawyers should be able to assess liability and value, and settle a claim with a structured settlement inside 18 months at worst.

If this happens, the result will be that claims are less expensive to manage and damages are paid earlier. It is fairer for all the patient and clinicians will suffer less stress, and lawyers and the NHS will get a better press.