Medical malpractice forward view 2018
The last twelve months have highlighted the uncertainties in an ever changing and complex legal environment. For those involved in personal injury and clinical negligence litigation the seismic shift in the personal injury discount rate in February 2017 marked the beginning of a year of uncertainty, caution and sharp claims inflation. At the same time, cases before the Courts have continued to push the boundaries of medical malpractice liability.
Against this background we consider ten key issues for all claims managers and underwriters to consider in the year ahead, when Brexit will be at the forefront of the news but other developments in the law will be starting to have an impact.
The personal injury discount rate ( PIDR ) is likely to change from -0.75% to between 0 and 1% towards the end of the year and maybe even early 2019.
The new rate may more realistically reflect how many claimants actually invest their compensation. Following the publication of its response to the consultation the Government indicated in Autumn last year that if the discount rate was to be set again it would be between 0 and 1% to reflect realistic investments by Claimants. Despite indications by Lord Keen to the Justice Committee in November that the discount rate was likely to be reset in the early part of the New Year, the Association of Personal Injury Lawyers were subsequently told that the rate will actually be reviewed and subsequently changed by the end of 2018 or start of 2019. Until then reserves must be kept under review and settlement parameters considered on a case by case basis depending on when any trial is likely to take place. In some cases claimants may consider settlement now at or close to a multiplier based on 0% PIDR.
Please contact Anna Walsh for further information.
Inquests could become more streamlined in the future to reduce court time and expense.
In the fourth annual report, the Chief Coroner noted the upward trend in inquests continue. This reflects our own experience of the last few years. He's concerned about the implications of the Medical Examiners system and recommended consideration of exceptional funding for legal representation for families in certain circumstances and for inquests to be concluded without a hearing in appropriate circumstances with a written ruling given. Such recommendations could result in costs savings to insurers and private healthcare organisations facing inquests but will need to be balanced against ensuring public confidence in the system is retained. Whether these recommendations result in the changes sought remains to be seen. In the current economic climate, we suspect the government is unlikely to see addressing this as a priority despite this being the second request for the change.
Please contact David Birch for further information.
The scope of duty of care owed by healthcare staff to patients could be extended to include non medically qualified staff such as hospital receptionists.
Capsticks successfully argued on behalf of the Defendant in the case of Darnley v Croydon Health Service NHS Trust both in the High Court and the Court of Appeal that the receptionist in an Emergency Department owed no duty of care to provide accurate waiting time information to a patient who subsequently left hospital and suffered a life-changing injury. The Claimant’s appeal is to be heard by the Supreme Court in June 2018 and, if successful, could extend the scope of liability to non-medically trained staff. Cases such as this and ABC v St Georges Healthcare show how claimant representatives are looking to expand the scope and nature of the duty of care owed by health professionals, organisations and their staff.
Please contact Cassius Box for further information.
Mediation will continue to be seen as an effective form of dispute resolution which can be entered into at any stage to avoid protracted and costly litigation.
Those not engaging will find themselves subject to cost penalties. The Court of Appeal decisions at the end of last year – Thakkar v Patel and Gore v Naheed and Ahmed highlighted once again the consequences of failing to engage in mediation. These were against the background of the Civil Justice Council’s report on alternative dispute resolution which proposed the availability of sanctions for not using ADR, introducing notices to mediate backed by costs sanctions and court ordered mediation if there is a failure to comply. The recent report of the House of Commons Public Accounts Committee entitled “Managing the cost of clinical negligence in hospital trusts” considered whether mediation should be mandated for certain types of claims in order to reduce legal costs. We have used mediation to great effect and expect it to be considered in many more cases in 2018.
Please contact Nikesh Sharma for further information.
There will be potentially more claims against local authorities, healthcare providers, charities and sports organisations from victims of alleged abuse.
The Supreme Court decision at the end of 2017 in Armes v Nottinghamshire County Council, which held that local authorities are responsible for abuse suffered by children at the hands of foster carers, set a marker for abuse claims. It brings the rights of victims of abusive foster carers into line with those abused in childrens homes. Following the Savile Inquiry and other high profile investigations into claims of abuse it is likely that more claims in this arena will emerge. Ensuring appropriate safeguarding is in place will prevent future claims. Those of a historical nature will need to be considered carefully from a limitation and factual basis so as to be effectively investigated and managed to early resolution where appropriate.
Please contact Nichola Johnston for further information.
A failure to obtain appropriate consent is likely to remain a common allegation in medical malpractice claims unless and until hospitals implement measures to ensure staff obtain fully informed consent and this is evidenced appropriately.
Discussion of material risks relevant to the particular patient is expected to be seen in the medical notes. The case of Webster v Burton Hospitals NHS Foundation Trust which was heard by the Court of Appeal last year was one of the more significant consent cases over recent years in that it was the first case since the Montgomery decision to come before the Court of Appeal. It reaffirmed the 'Montgomery' principles requiring clinicians to undertake a subjective approach and obtain true informed consent based on material risks, which are relevant to the particular patient or a reasonable person in the patient’s position. A lack of evidence is likely to be construed against the Defendant.
Please contact Majid Hassan for further information.
2018 will see significant steps towards the introduction of fixed recoverable costs in low value medical malpractice claims.
The Government’s Review of Civil Litigation Costs confirms proposals to apply a bespoke pre-action protocol and fixed recoverable costs scheme to clinical negligence claims with a damages estimate up to £25,000. The scheme is likely to be similar to that in EL/PL cases of the same value although adapted to address the need for additional experts on these more technical issues. Whilst the reduction and certainty is welcomed, any scheme is likely to be challenging in terms of timescales requiring a proactive response at the earliest possible opportunity along with careful analysis to balance the attraction of quick-fix cost reductions through settlement versus the long term impact on claims history and reputation. There is likely to be a significant influx of claims brought/issued prior to any deadline for the introduction of fixed fees meaning now is the time to prepare.
Please contact Jennifer Harris for further information.
The advancement in automation in technology and telemedicine will continue to present opportunities but also new risks and legal challenges.
Technology and its use in medicine is continuing to advance at a significant pace. Remote e-consultations between doctors and patients, not to mention surgery, can be undertaken many hundreds if not thousands of miles apart. As a result those who are offering insurance cover to health professionals and clinics providing such services and products need to ensure that risk is properly assessed in the supply chain and the scope of the cover is clear. Those who are buying insurance cover need to check the terms and limits of the cover and be satisfied that appropriate and unambiguous contractual indemnity provisions are in place. All of this is against a background of increasing data collection which in itself raises additional risk that needs to be assessed before risk control measures are in put in place.
Please contact Lucy Wheeler for further information.
The medical malpractice indemnity market will continue to change and provide openings for those offering appropriate cover for this class of risk. The Paterson Inquiry will place this market under the microscope as never before.
The introduction of a state-backed indemnity scheme in the future for general practitioners was one of the biggest announcements in recent years concerning medical indemnity. While the initial indication was that the scheme would be administered by NHS Resolution the detail is yet to be finalised . If the majority of GPs join the Government backed scheme, subject to the MDO offerings, there may be an increasing number of GPs looking at the private market for non-claims cover (i.e. regulatory, inquest and disciplinary cover). In addition, clinicians operating in private practice, especially those in higher risk specialties such as neurosurgery and obstetrics, will be looking carefully at their own indemnity provisions as some indemnifiers have been assessing the cost of covering such classes of business in light of the discount rate reduction to – 0.75% which resulted in potential damages awards, especially in cases with long term consequences, increasing significantly.
The Department of Health announcement in December 2017 that an independent non-statutory Inquiry had been launched following the malpractice and conviction of Ian Paterson, Consultant Breast Surgeon, will place this sector under greater scrutiny. The Inquiry will commence in January 2018 and is expected to report in summer 2019. In addition to considering the arrangements for medical indemnity cover for clinicians in the independent sector, the inquiry is also likely to review: the responsibility for the quality of care in the independent sector; information sharing, reporting of activity and raising concerns between the independent sector and the NHS; the role of insurers of independent sector healthcare providers; arrangements for medical indemnity cover for clinicians in the independent sector. This is going to be a wide-ranging Inquiry and it reinforces the government’s drive towards enhancing safety and learning from incidents within healthcare organisations.
Please contact Ed Mellor for further information.
The impact of the General Data Protection Regulation, which come into force in May 2018, will be far-reaching.
Whilst GDPR is an evolution of the current law, there are a number of pitfalls for the unwary. Organisations will need to be prepared in order to avoid falling foul of the Regulation (and the accompanying Data Protection Act) and facing draconian penalties (and a loss of trust in their business). Insurers who, with the advances in insuretech are collating large amounts of personal data, will have to assess the risks associated with data capture, storage and sharing…and expect greater scrutiny from regulators. 2017 saw the first group action in respect of a data breach. Morrisons supermarket were held liable for a breach by a disgruntled former employee, which led to the release of personal sensitive data over 5,000 staff. 2017 also saw a major attack on the NHS, and many other businesses, by Ransomware. Such incidents are likely to become increasingly prevalent, as borne out by the increased uptake in cyber risk policies. Organisations need to ensure that they are GDPR compliant with appropriate policies and training for staff in their organisation and ensuring that appropriate risk assessments have been undertaken.
Please contact Andrew Latham for further information.