Medico Legal News, Issue 6

PI market continues to grow

According to a consultancy IRN Research report in September, the PI market continues to grow modestly in value terms and is worth almost £4bn a year, but it predicts the market will suffer in 2019 as government reforms begin to take effect.

Fixed fees for lower value cases, a tariff system for setting RTA claim damages and an increase in the small claims limit are likely to hit next year.

A survey of a panel of law firms confirmed the nervousness in the sector with only 35% of those surveyed expecting increases in workload in the next 12 months (compared to 48% in 2016).

All brackets of personal injury damages have been increased to reflect inflation (an increase of 4.8% compared to two years ago). For example, a whiplash injury lasting 3 months will now be awarded between £1,200 and £2,150 (up from £1,160 to £2,050).

More details on their site: www.lawgazette.co.uk/news/pi-market-a-year-from-cliff-edge-as-damages-set-to-rise/5062978.article

Fixed Costs in Clinical Negligence

The timescale for the introduction of fixed fees for personal injury cases was delayed again this September.

While Lord Justice Jackson supported the concept of fixed recoverable costs (FRC), he also said health ministers and the Civil Justice Council should set up a working party, including claimant and defendant representatives, to develop a bespoke process for clinical negligence claims initially valued up to £25,000.

The Society of Clinical Injury Lawyers has always rejected the idea of fixed costs for its sector, and members of the group met in parliament to speak directly with MPs.

‘We believe the most important issue here is patient safety – if there can be improvements and lessons learnt then the level of negligence will be reduced,’ said chairman Stephen Webber. ‘I do not accept the position of others who say FRC is inevitable.’

The Department of Health has yet to respond to its own separate consultation on fixed costs, a reform which the National Audit Office says will save £90m a year by 2020/21.

More details on their site: https://www.lawgazette.co.uk/news/fixed-costs-fury-builds-as-timetable-slips-back/5062849.article

A National Audit Office Report: Managing the Costs of Clinical Negligence in Trusts

‍According to a report from the National Audit Office (NAO), in the last 10 years (2006/7-2016/17) the number of clinical negligence claims registered with NHS Resolution (formerly the NHS Litigation Authority) has doubled from 5,300 to 10,600, with the cost rising from £0.4 in 2007 to £1.6 billion in 2017.

The NAO report, published on 7 September 2017, lists the contributing factors and action taken to address this unsustainable rise in negligence costs.

The main contributing factors were identified as: increasing NHS activity, legal reforms, high value birth injury claims, increased life expectancy and cost of care, and low- and medium-value ‘no-win-no-fee’ agreements.

Proposed or ongoing actions to address rising costs include: engaging with trusts on patient safety issues, improved maternity care, repudiating claims without merit, alternative dispute resolution schemes, challenging excessive legal costs, and introduction of fixed claimant legal costs for claims up to £25,000.

Read more at: www.nao.org.uk/report/managing-the-costs-of-clinical-negligence-in-trusts/

Five years of cerebral palsy claims

This thematic review of NHS Resolution data presents a detailed analysis of cerebral palsy claims, identifies the common problems and provides recommendations for improvement to reduce the incidence of avoidable cerebral palsy.

Written by: Michael Magro BSc(Hons) MBBS MRCOG, Darzi Fellow, NHS Resolution

Published this September it is available as a PDF:

Read more at: www.nhsla.com/Safety/Documents/Five%20years%20of%20cerebral%20palsy%20claims%20-%20A%20thematic%20review%20of%20NHS%20 Resolution%20data.pdf

Fixed costs for noise -induced hearing loss (NIHL) claims

There is one area where fixed recoverable costs now seem inevitable, after the Civil Justice Council (CJC) published a report making recommendations for FRCs and improvements to claims management for NIHL cases.

Andrew Parker, chair of the NIHL working party and CJC member, said: ‘It is in both claimants’ and defendants’ interests that these claims are handled efficiently by both sides in the initial pre-issue stages, to avoid unnecessary costs being incurred and to ensure that all parties get the earliest possible resolution of a claim.’

More details on their site:www.judiciary.gov.uk/wp-content/uploads/2017/09/fixed-costs-in-noise-induced-hearing-loss-claims-20170906.pdf

MDU Advice on Protecting patient data

The MDU have emphasized that doctors must make sure that identifiable patient data is not improperly disclosed in any circumstances: an inadvertent breach of patient confidentiality could result in a trust disciplinary or GMC investigation.

Under the Data Protection Act 1998 (DPA), those responsible for patient data are legally obliged to store it securely and protect it from unauthorised or unlawful processing.

The GMC's guidance on confidentiality states that 'you must make sure any personal information about patients that you hold or control is effectively protected at all times against improper access, disclosure or loss'.

Communicating via mobile apps

NHS guidance for doctors using mobile apps which lack proper security features, such as WhatsApp, advises that they 'should never be used for the sending of information in the professional healthcare environment.' WhatsApp 'does not have a service level agreement with users and has no relevant data security certification' and, as such, should not be used to send patient information or details of clinical cases to colleagues.

Data storage on portable devices

Portable storage devices devices are vulnerable to loss or theft, so security and best practice should be prioritized. Identifiable personal data on personal mobile devices, such as memory sticks, laptops or personal mobile phones, which risk being misplaced or accessed by other people, should be avoided.

Transfer or storage of information should be in line with each trust's information security policies, and professional and personal data should not be mixed.

If any data is lost, the incident should be reported to the nominated person in the organisation immediately. Appropriate action can then be taken and patients informed, as necessary.

www.themdu.com/guidance-and-advice/guides/protecting-patient-data

NICE put its first draft guidance on Lyme disease out for consultation until November 2017

Lyme disease cases in the UK confirmed by laboratory testing rose from 346 in 2003 to about 1000 in 2015. Public Health England estimates there are around 2,000 to 3,000 new cases of Lyme disease in England and Wales each year. Lyme disease is a notifiable disease in Scotland, but not currenlty in England and Wales.

An alleged failure to diagnose the disease is the most common reason for complaints and claims about Lyme disease.

NICE draft guidance aims to raise the profile of the disease amongst general practitioners, encouraging them to consider the disease among their list of potential diagnoses, when relevant, and to be aware that there are various clinical manifestations of Lyme disease.

The guidance recommends that patients who present with a characteristic rash, erythema migrans, should be treated for Lyme disease without the need to resort to laboratory testing.

GPs should advise patients to take precautions against tick bites if they're visiting high risk areas, especially in spring and summer when ticks are most active. NHS Choices provides advice on preventing tick bites.

The consultation runs until 6 November 2017, with the final guidance expected in April 2018.

www.nice.org.uk/guidance/indevelopment/gid-ng10007/consultation/html-content-2

Personal injury discount rate reform cautiously welcome

After a consultation that closed this May, draft legislation has been published this September to change the law relating to the personal injury damages ‘discount’ rate. It will now be set by reference to rates of return on ‘low risk’ rather than ’very low risk’ investments. The rate will also be reviewed at least every three years in future.

Lord Chancellor and Justice Secretary David Lidington said: ’We want to introduce a new framework based on how claimants actually invest, as well as making sure the rate is reviewed fairly and regularly. In developing our proposals, we have listened carefully to the views of others, and we will continue to engage as we move forward.’

The insurance industry, which lobbied hard for the change, claims it is fairer for claimants, customers and taxpayers. Brett Dixon, president of the Association of Personal Injury Lawyers, believes the discount rate must be set to meet the needs of catastrophically injured people.

'Someone with a life-long, life-changing injury such as brain damage or a spinal injury cannot afford to take any risks with how his compensation is invested.'

Simon Kayll, CEO of the Medical Protection Society, said:

“It is vital that Government gets this right if we are to avoid further sudden shocks to the cost of compensation, and the proposed new framework is a welcome step which could result in a more common-sense approach with the reality of how claimants invest compensation payments at its core. It is however dependent on implementation - the new framework will only apply if and when the proposed law is enacted and it will not apply retrospectively.”
‍