Clinical negligence is a niche area of law. Cases are more complex than a typical personal injury claim and invariably require expert medical opinion at an early stage. Sara Brady, an English Solicitor in Viberts’ Dispute Resolution team, considers the rise in clinical negligence claims and how they are addressed in Jersey.
The cornerstone of every clinical negligence case is whether the care a patient received fell below the standard expected of a reasonably competent specialist in that area of medicine. This test was established in 1957, in the case of Bolam v Friern Hospital Management Committee (1957) and continues to apply today.
Both parties obtain independent expert reports from the relevant medical disciplines, to ascertain whether the treatment in question was substandard and if so, what pain, suffering, loss of amenity and other damages it has caused to the patient.
Interestingly, with the advancement of medical science, experts can now contend issues that were once considered simply right or wrong. It is perfectly possible for two specialist experts to have opposing views of whether a treatment was substandard, making claims not only challenging, but expensive to settle.
Volume of cases
Each year in the UK, the NHS receives more than 10,000 new claims for clinical negligence compensation; although not all will necessarily be merited. Clinical negligence cases have been on the steady rise since 2006 and have increased by 133% since then. Not surprisingly, the costs of dealing with clinical negligence claims also continue to rise each year.
One possible explanation is the ageing population. Naturally, medical conditions occur more frequently in old age, creating an ever-increasing demand for treatment. Another is the widely recognised issue of understaffing, caused primarily by underfunding of the NHS. As a result, doctors and nurses have taken on longer hours and heavy workloads to cope with growing demand.
Doctors are now at a higher risk of mental health issues, substance abuse and suicide in comparison with the general population. Over 30% of NHS doctors report feeling so physically and mentally exhausted that they are clinically considered ‘burnt out’. This was prior to the Coronavirus outbreak, which for obvious reasons, exacerbated the problem.
These pressures inevitably affect the quality of service provided to patients, delay investigation and treatment, all of which result in clinical negligence claims.
Population figures in Jersey show over 40,000 island residents are aged 50 plus, accounting for approximately 38% of the population. In October 2022, it was reported that there were 400 vacancies in the Jersey Health Department, equating 15% of the total positions, putting resourcing at Jersey General Hospital in a similar position to that of the NHS. The Chairman of the Royal College of Nursing stated this kind of shortfall in staff puts the Jersey General Hospital “…in the red zone” and part of a larger worldwide staffing crisis faced by healthcare providers.
As Jersey experiences similar challenges to the NHS, it will face an ever-demanding increase in claims unless it sets itself apart from the NHS and tackles those challenges head on.
Compensation & legal costs
In the UK, the BBC reported that in 2020, the outstanding legal costs for unsettled clinical negligence claims amounted to an eye watering £4.9 billion.
Jersey, however, has limited the compensation rates that they will pay out in more serious claims, by legislating for a higher discount rate than the UK. The discount rate is a figure used to calculate compensation payments for high value injury claims, where the claimant will have losses occurring in the future, but which need to be calculated in advance. It reflects the fact that someone getting a lump sum payment in place of, say, 20 years of their earnings, will typically invest it and expect to get a return on it. The lower the rate, the higher the compensation awarded and the greater the cost to the public purse.
Balancing an individual’s right for compensation for sustaining a preventable injury against society’s ability to pay is no easy task. This only becomes more difficult giving consideration to the impact that the claim may have on the public care system as a whole and particularly hospital employees, who are simply trying to save people’s lives.
What next?
In the UK, the Department of Health and Social Care is consulting on fixed legal costs for low value clinical negligence cases, however, the issue of costs on complex cases remains unresolved. The use of joint medical experts, (where the claimant and defendant instruct one expert to provide an opinion on the case, therefore splitting the costs, as opposed to instructing separate experts) has also been put forward, but unsurprisingly, in a recent focus group there was no support for this approach from claimant and defendant practitioners alike.
Meanwhile, the Jersey court has shown itself willing to restrict costs for the lower value clinical negligence claims, by setting very limited fixed costs. The drawback is that such limited costs make such cases difficult to justify pursuing, due to the level of potentially costly investigation required in even relatively low value clinical negligence claims. Although a higher discount rate does apply in Jersey when compared to the UK, this can be changed periodically, and it remains to be seen if there will be any further legislative intervention to deal with costs in larger clinical negligence claims in Jersey in the future. Ultimately any legislative changes have to be balanced against a patient’s access to justice, and their right to have legal assistance to bring a claim.
Pictured: Sara Brady, an English Solicitor in Viberts Dispute Resolution team.
