Clinical negligence sector must prioritise patients and medical professionals

The aims of improving patient safety and reducing clinical negligence claims drove discussion at the Clinical Negligence Debate yesterday, with speakers and panellists urging the sector to prioritise the wellbeing of patients and medical professionals.

Attendees of the Clinical Negligence Debate, sponsored by Hayes Medicals and chaired by Melanie Rowles, director of service delivery at the Medical Protection Society (MPS), who was supported by medicolegal lead for risk prevention Dr Pallavi Bradshaw, heard from Stephen Webber, chairman of the Society of Clinical Injury Lawyers, who considered the journey that patients take to become claimants.

As head of the claimant division within his firm, Webber subjects every claim to an in-depth screening process, which tests the strength of the case and other areas well ahead of issuing a letter of claim.

Webber said that he and his team dismiss 85 to 90 of every 100 cases they receive following this process. Around half of those are then dropped once medical records and reports are reviewed, with only between five and eight cases then making it to a letter of claim.

“This is when we mean business,” Webber said. He and his team have a 90%+ success rate after conference and issue, meaning that only the most serious and reasoned claims are making the jump from injured patient to litigated issue.

An effect of this process is that patients aren’t unnecessarily subjected to the pressures of a trial, a point that Sean Doherty, a partner and clinical risk lawyer at DAC Beachcroft, made in the panel debate on why patients become claimants.

He said that both medical professionals and patients do not need to experience the burden of a trial if at all possible, and that claimant and defendant solicitors “need to remember their clients in the heat of battle”.

One way of achieving this outcome is through mediation. A series of presentations gave the viewpoints of the mediator, claimant solicitor/barrister team and defendant solicitor, with all agreeing that alternative dispute resolution mechanisms can work for all parties if they are brought at the right time, carefully consider the most important issues, and everyone involved approaches them in the best way.

Barrister Daniel Frieze, head of the personal injury team at St John’s Buildings, defined mediation as an “opportunity to compromise, not a judicial procedure”, which should be subject to an early neutral evaluation to ensure that all parties are making their cases, offering reasonable concessions, and being open and honest.

To unblock mediations and bring both sides to table, counsel and solicitors should explain the costs of going to trial, according to Frieze.

Majid Hassan, a partner and head of the medical malpractice insurance team at Capsticks, highlighted a recent report from NHS Resolution on the performance of its claims mediation service as evidence that alternative dispute resolution mechanisms can both protect patients from a trial and deliver outcomes more suited to their needs.

For example, mediation is proven to be an effective forum for claims resolution by providing injured patients and their families with the opportunity to receive face-to-face explanations and apologies, according to the report, and an insight that speakers and panellists echoed during the debate.

The participation of medical professionals in the process slightly improves the chances of its success, according to the report, although Hassan recommended engaging in some education to convince them of the benefits of doing so, with some worried about aggravating matters or unsure about their role.

Two other tracks at the Clinical Negligence Debate focused on the duty of candour in theory and practice, as well as reform of clinical negligence through legislation and within the legal and medical professions.

Dr Pallavi Bradshaw, medicolegal lead for risk prevention at the MPS, who joined the afternoon debates on the duty of candour and why patients become claimants, said: “We very much focus on trying to improve patient safety and reduce doctors’ medicolegal risk by undertaking culture change and being open and honest, because we know that a lot of the time patients don’t sue necessarily because they have been injured by negligence, but because they want answers.”

Reflecting on the day’s debate, Rowles said: “The debate today has been very interesting in looking at whether clinical negligence as a tortious system actually does impact patient safety. Hopefully what attendees will get out of this is to see it’s not just about money. It’s about trying to bring about proper resolution to disputes. Also, the legal profession needs to be able to come and listen to those that have a slightly different perspective.

Rebecca Fenton, managing director of Hayes Medicals, headline sponsor of the Clinical Negligence Debate, used her welcome speech to urge collaboration in clinical negligence to achieve the best outcomes for clients. She said: “We need those people who have been unfortunate and affected by others’ negligence to be able to get access to justice, access to reliable, trusted, knowledgeable people who can help them get the answers and help that they need and deserve.”

“We need to work together to understand how and why mistakes happen and these claims arise, not just for proving causation, but to try and have actions put in place to reduce these incidents happening. We need collaboration and compromise to see improvements in the NHS, to ensure we can keep this service available to those who may at some point in their lives rely on it.”