A better way of managing children’s claims?

Posted 17/01/2011

Rosamund Rhodes-Kemp, a former nurse who now heads the Clinical Negligence team at Ashtons Legal, explains how children’s negligence claims could be better managed.

The issue of how children’s clinical negligence claims can be handled to best effect is highly topical following the Ministry of Justice’s consultation announcement. Future funding is, at best, uncertain. Meanwhile there is clear evidence that these cases are taking far too long to resolve, which is detrimental to both the families concerned and the public purse.

In the main claims relate to stillbirths and catastrophic brain injury. In both instances the effect on the family is devastating. So, surely there must be a better way of progressing these claims, to speed up the process and to reduce costs?

A recent Conference in London brought together a selection of the key stakeholders in this process to discuss the issues.and seek solutions. Speakers and delegates were present from a wide range of organisations including the Centre for Maternal and Child Enquiries (CMACE), the Legal Services Commission, the National Health Service Litigation Authority, Defendant and Claimant solicitors, The Chief Executive of APIL, experienced experts, Leading Counsel, midwives, clinicians, mediators and a senior Clinical negligence High Court Master.

What rapidly became apparent was that small improvements in almost every stage of the process should be possible and could cumulatively make a huge difference to the outcome in terms of time and cost. These are not just limited to the claimant and defendant solicitors but involve all stakeholders to a greater or lesser degree.

The Legal Process:
The starting point is earlier letters of claim as this would give defendants a better opportunity to investigate and respond fully. Consideration right at the outset as to what format is going to be used to resolve a dispute would also be a major benefit so that cases can be prepared accordingly. At the moment virtually all cases are prepared for trial and yet 99.9% of them settle out of court.

The aim should always be for earlier settlement, and in some cases this can be achieved without quantum expert reports. Examples are available of cases where a settlement was agreed without any quantum evidence and based on the experience of the legal advisers on both sides, but they are few and far between. This route could and should be considered more often.

Where a case does progress down the traditional route, all parties should be working towards early pre-hearing agreements rather than these taking place on the morning of the hearing itself. This would allow another case to be scheduled, whereas court time is currently wasted because there isn’t sufficient lead time to schedule another hearing in the vacated slot.

Administration Issues:
In many cases there is scope for improvement in paperwork which would also enhance the process. General attention to detail in terms of document preparation is one such area given that court staff are under pressure and understaffed. Perhaps more important is the suggestion that lawyers should only send to the court the paperwork required to enable the adjudicator to make a decision.

Issues Involving Experts:
The first key issue is the limited pool of experts available and there is widespread agreement that positive steps should be taken to enlarge it and consequently reduce delay. Once an expert is instructed then savings in both time and cost could be made by fewer documents being sent to the experts so that they just review records relating to their discipline/material facts.

There is also scope for improvement in relation to experts’ meetings. In particular shorter agendas just dealing with the issues, and the contents of the Pleadings, would streamline the process. Experts should meet earlier in the Directions Timetable and not at the doors of the court. Meetings of key experts of the same discipline at the beginning of the case could rapidly resolve discreet issues between the parties.

Medical Issues:
In the longer term it would be beneficial if all midwives and clinicians had more training on the legal process surrounding claims. In the meantime, however, there is a call for midwives and/or clinicians to be informed of the progress of claims against them and also to be given sufficient notification of meetings with counsel and others involved in the case in order to find cover whilst they are excused from duty.

Momentum for Change:
There is no doubt that, if all these measures are put into practice, it would go a long way to resolving these claims more quickly and at lower cost.

The crux lies in is effective communication. The starting point is ongoing inter-disciplinary communication between the stakeholders and understanding of each other’s perspectives. This, coupled with a more collaborative approach to reaching resolution in a case, has the potential to make a major difference.

Success will require wide scale changes in attitude and approach across several professional disciplines but it is achievable. Given the current legal landscape and potential funding issues, there is no better time than now. The more clinical negligence lawyers