State of emergency

As medical negligence payouts spiral out of control, the NHS is facing an onslaught of claims. Claire Smith examines the role of the lawyers trying to protect the NHS from the claims.

Just like hamburgers and Jerry Springer, the compensation culture is crossing the pond. The £4.5m award made last week to a boy left brain-damaged after a consultant failed to diagnose meningitis is one of the largest in medical history, and the latest in a line of headline-grabbing settlements.

Both claimant and defendant solicitors are seeing work boom as the media feeds the litigation frenzy and more people realise what they can win if they speak to a lawyer.

“The newspapers are interested in the big figures,” says Lesley Herbertson, head of clinical negligence at leading claimant firm Alexander Harris. “Because there are more big figures there is more out there in the public eye. That makes people think they should be asking questions about what happened to them. Medical experts see patients and think 'that shouldn't have happened', then they tell them to go to specialist solicitors.”

All the leading claimant firms report huge increases in the number of cases coming through the door each week. Russell Levy at Leigh Day & Co says his firm has seen a 30 per cent increase in the number of enquiries in the last year, and he expects the success story to continue.

And with all this costing the National Health Service millions of pounds every year, it is determined to investigate and tackle every claim, boosting work for defendant lawyers.

The solicitor who won the record settlement last week defends the rising awards. Top clinical negligence lawyer in the Midlands Tony Hall, of Anthony Collins Solicitors, says: “I think they are getting larger because of increasing specialism on the part of the lawyers and recognition that there are longer life spans.

“There is a growing appreciation on the part of the courts and the judges of how much additional care is required, and I would not say the awards are getting too high.

“There is scope for general damages to go up still further, but there are not going to be that many more larger than this.”

Leading defendant clinical negligence solicitor Janice Barber, managing partner at Hempsons, is surprised at the latest award.

She says: “Twenty years ago the then biggest award was £100,000, so it has gone up 45 times. That is fantastically faster than personal injury awards.”

Working for the NHS is keeping her firm busy. “As a firm we have been expanding and we are recruiting across the board. I would be surprised if other defendant firms were not recruiting,” she says.

Last year the NHS cut its panel from 100 firms to just 18, focusing the work in the hands of the few. At panel member Beachcroft Wansbroughs, health litigation partner John Holmes says the work has been flooding in.

“We are very busy and the increased size of awards is a big factor,” he says. “One does a lot more investigation when working on claims.

“You have got a much more able response on the claimant side than you used to. Claimants still have to do a lot more of the running, and the solicitors are much better than they were.”

The introduction of legal aid franchises on the claimant side four months ago has cut the number of firms working for victims of clinical negligence to just 200. The increased specialism has contributed to the rising awards, the high workloads and ever increasing profits. Paul McNeil, leading clinical negligence partner at claimant firm Field Fisher Waterhouse, says: “People that are not franchised were not doing that much good quality medical negligence work. They were not looking to attract large sums in damages, so now there is a lot of work out there but I am not sure there is a lot of good quality work.”

National head of personal injury at Irwin Mitchell John Pickering says: “For those who are specialists in the area there is a significant amount of work. You have seen my firm take on a team of clinical negligence lawyers in Birmingham, and we now have more people working in this field than we ever have had in the past.” He predicts more work will come as part of the ever increasing consumer awareness of the ability to make claims.

“In the US a study found that of people who could claim only about 20 per cent did, and it was felt that the same was true in this country. Now if people enquire they are able to find out much more easily how to claim,” says Pickering.

Rising consumer interest is also fuelling an increase in product liability claims, with the potentially enormous measles mumps and rubella (MMR) vaccine case progressing against five pharmaceutical companies. Alexander Harris is acting for nearly 2,000 children who claim they have been damaged by the vaccine and are calling for damages of millions of pounds each.

The leading claimant firms in product liability are much the same as those in clinical negligence, although the defendants tend to use the big City firms.

John Meltzer, a partner in the product liability group at Lovell White Durrant, says his department is very busy. It is acting for drug company Merck Sharp and Dohme in the MMR litigation.

He says: “We spend a lot of time today worrying about possible health threats. Everything from BSE, mobile phones, passive smoking and power lines to GM foods and childhood vaccines. Consumer organisations actively promote litigation as a way of getting to the truth and of obtaining redress, and increasingly lawyers are prepared to step forward to support them.”

It is a view backed by Gary Hickinbottom, partner in the healthcare group at CMS Cameron McKenna. He says that cases for product liability are increasing as a result of publicity and Legal Aid Board funding. There are a very small number of firms doing the work, and they are doing well.

Davies Arnold Cooper, which is acting for Smith Kline Beecham on the MMR case, is the only leading product liability firm which is also on the NHS panel. Partner Simon Pearl says the firm is busier now than it has been for the last 15 years.

But he adds a note of caution: “Unless the claimant funding system stabilises there will not be an expansion in the number of these cases. We will see less speculative litigation and it may result in cases being resolved rather more quickly.”

There is also concern about what the NHS will do to tackle the rising costs of litigation. A report out last month from the House of Commons health committee called for a system of no fault compensation to be considered. It could work in a similar way to the Criminal Injuries Compensation Authority, with damages decided by a panel of doctors.

Paul Balen, secretary of the Association of Personal Injury Lawyers and a partner at Freeth Cartwright Hunt Dickins, has reservations about such a system. He says that such a fundamental change of approach “must be fair and provide just compensation for injuries”.

“If by no fault they mean not having to prove causation it could be phenomenally expensive. A similar system in New Zealand resulted in a huge surge in complaints having to be dealt with and ended up costing them more,” he says.

“If they mean not having to prove negligence or fault that is great so long as methods are in place to allow for apologies and explanations, which are very important for claimants.”

Pickering adds: “The idea always floats around when there are reports of large awards. If you had a truly compensatory no fault system we would simply not be able to afford it.

“That's not to say it's not a problem – anything that is costing the NHS millions of pounds has got to be looked at, but it's got to be kept in context.

“The better thing to do is to try and look at solving the problem and reducing the number of adverse outcomes rather than reducing the awards.”

Lawyers on both sides of the litigation process claim to support the NHS in its efforts to reduce the number of clinical negligence actions. Ironically, for the lawyers involved, such a reduction would mean a significant fall in income.