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Government to impose £100,000 cap on clinical negligence legal fees: A Response
24 August 2015
Government to impose £100,000 cap on clinical negligence legal fees: A Response
I was prompted to write this blog after reading “Government to impose £100,000 cap on clinical negligence legal fees”, which you can access at:
The NHS has caused the problem and the government has failed to adequately address this known issue for decades. However, now the government wants to punish the victims of medical negligence and the lawyers who represent them because of its own errors.
Medical Negligence Litigation and why NHS legal costs have, in my view, continued to escalate, out of control, for the past three decades.
Medical negligence claims can be difficult to establish as they rely mainly on the ‘Bolam Test’, which effectively means "If a doctor reaches the standard of a responsible body of medical opinion, he is not negligent". Sadly, some medical experts are prepared to cover up for their colleagues, which was my personal experience following the negligent death of my ten year old son.
Prior to Robbie’s death, on the 17th April 1990, I had no experience whatsoever with the NHS complaint procedures or medical negligence litigation. In fact I had left school in Glasgow before my fifteenth birthday with no qualifications – all I had was a truancy card.
On the 5th December 1989 Robbie was admitted to Morriston Hospital, as an emergency. The child was critically ill with severe dehydration, vomiting and abdominal pain. Robbie had actually lost approximately 30% of his body weight. Blood tests revealed he had, inter alia, high potassium, low sodium and low blood sugar all of which pointed to Addison’s disease and were, according to subsequent medical experts, absolutely characteristic of this condition.
Addison’s disease was therefore suspected and the ACTH test, which would have confirmed the condition, was ordered. Addison’s disease is treatable with a daily intake of tablets and the patient can live a full and normal life. However, if untreated, the patient will invariably die a torturous death as was the tragic outcome with Robbie.
Robbie was discharged on the 9th December 1989 when he was still looking unwell and was visibly under weight. It was subsequently claimed that the child had a rapid recovery. You can access a photograph of Robbie seventeen days after discharge [26th December 1989] at: https://8a0a4134-a-62cb3a1a-s-sites.googlegroups.com/site/robbieslawtrust00/home/Robbie%20Boxing%20Day%201989.jpg?attachauth=ANoY7cpJ9e6ZHqg_UavNaQh4deoSknDFZfIxbLP9jYh-K_bh4UT_qBJJ2liOrIjykZkQQednPY_vJAaNpBpRyBMZ8ycZqI8MRLceOhJszC9GYJAGcOfCg05p1-7cyuBbZHxo_FvlMO8tkNbvsXLqxUB8A8oH_yxU8cZRYYHRgXLUZHxRO73i6rcJ0zkN7WQevRPZNGTwCf5Kkl8GtmzXQ89SxC6IaSWS5uY0lKqrf7Ws9tESJRCZ04-vjeoihf-X3cxbEa_1NBW_&attredirects=0
During the four days in hospital neither the paediatricians, nor anyone else for that matter, mentioned to my wife and I that Addison’s disease had been suspected or that the child needed an ACTH test. In fact, when we asked what had been wrong with Robbie one of the paediatricians erroneously blurted out gastroenteritis notwithstanding the child didn’t have diarrhoea and his symptoms and blood tests were contrary to this diagnosis - this being something we were unaware of at the time.
Some five weeks after discharge Robbie was seen as an outpatient. The Paediatrician said that Robbie looked wonderful and discharged him back to the care of the GPs. Again, when asked, the paediatrician said it had been gastroenteritis, which had caused Robbie’s previous emergency admission, when the high potassium, low sodium, low blood sugar and other symptoms were not consistent with this diagnosis. No mention again was made of the suspicion of Addison’s disease or the need for the ACTH test. At the time we were happy to accept this diagnosis without challenge as we didn’t know any different.
What we didn’t know, until after death, is that the paediatricians had informed the GP Practice of seven doctors that Robbie had been suspected of Addison’s disease, that he needed the ACTH test and that he should be immediately re-referred back to hospital if he became unwell. The correspondence even claimed that my wife and I had been informed of the ACTH test, which was untrue.
Between the 2nd and 17th April 1990 Robbie was seen by five GPs on seven separate occasions. He was seen by three GPs four times in the last three days of his life when he was critically dehydrated, vomiting and too weak to even stand up. On the day of death he was seen twice by the same GP. Although Robbie had collapsed and fainted as his mother assisted him to the toilet the GP refused hospital admission on her first visit and an ambulance on her second. As we arrived at the hospital, by car, thirty minutes later, Robbie took his last conscious breath and was declared dead shortly afterwards.
The cause of death was recorded as Addison’s disease. Our request for an inquest was refused as it was erroneously claimed that Robbie died exclusively from natural causes. I eventually forced an inquest fourteen years after his death. The verdict was natural causes aggravated by neglect confirming that there should have been an inquest in 1990.
I was advised by my MP to make a formal complaint under the NHS complaint procedures which I did just thirteen days after Robbie died. It resulted in a Medical Services Committee hearing on the 13th December 1990. The committee comprised of two GPs, two lay members and a chairman, who was also a Magistrate. I couldn’t have been treated worse if I had caused Robbie’s death and the Committee accepted the GPs’ evidence when I had completely discredited their version of events. I had proven that the GPs had blatantly lied about the circumstances of Robbie’s death and falsified the child’s medical records. Four GPs were exonerated and one was found guilty of being in breach of her terms and conditions of service – she was given the minimal reprimand and told to conform in the future.
I appealed to the Welsh Office and had a hearing which convened in March 1992 for three days, was tactically adjourned, and then reconvened six months later in September. The panel consisted of two GPs and a Chairman who was a barrister. It was established that Robbie’s original GP medical records had been altered during the adjournment, when they should have been in the safe custody of the Welsh Office, and that there had been collusion between the respondent GPs, Welsh Office officials and the tribunal. As a consequence of the Chairman’s refusal to investigate these serious allegations, which were later confirmed during the course of an independent police investigation, between 2000 and 2002, I withdrew from the appeal, which had cost me approximately £34,000 in legal costs.
From 1991 onwards I made numerous complaints to the Ombudsman and the Parliamentary Ombudsman but to no avail and the NHS cover up continued. I subsequently found out that the Ombudsman had made numerous derogatory comments about me for which I had a formal apology in 2004 from the then Parliamentary Ombudsman.
In April 1993, just before the three year statute of limitations, I was left with no other option but to enter into medical negligence litigation and Writs were served on the five GPs and West Glamorgan Health Authority. Robbie’s death, if caused by medical negligence, had a statutory payment of £5,000, which included funeral costs. We didn’t initiate civil proceedings for the money but more so to seek truth and justice for Robbie. At the time we were unaware that civil proceedings had nothing whatsoever to do with truth and justice and were only about receiving compensation for the damage caused.
The five GPs and West Glamorgan Health Authority denied negligence and defended the case against them when it was obvious to the doctors, their medical experts and their legal representatives that medical negligence had caused Robbie’s death. The GPs were able to persuade at least four medical experts to support their treatment of Robbie. Three supported all five GPs but one only supported the treatment of four of the GPs. Nevertheless the case against them continued to be inappropriately defended, which of course incurred additional legal costs from the public purse.
Although the initial claim for Robbie’s death and the funeral costs were approximately £5,000 my wife and I were now also claiming for psychological damage and loss of earnings. The claim was now estimated in excess of £300,000, which didn’t include any legal costs. Had the doctors been honest about the circumstances of Robbie’s death from the outset, shown compassion for his needless death and to us as his parents, identified and learnt from the mistakes, to prevent repetition in the future, the civil proceedings would not have been initiated.
The civil trial was listed at the High Court in Cardiff for a period of six weeks commencing on the 17th June 1996. However, a month before the trial, West Glamorgan Health Authority paid £80,000 into court and admitted liability for Robbie’s death and did so with the same information that was known on the night the child died, six years earlier. It is interesting to note that the CPS and the Director of Public Prosecutions had already refused to charge the hospital paediatrician for gross negligence manslaughter because they claimed the causation link was broken by the intervention of the GPs in the two weeks leading to death. This begs the question as to why West Glamorgan Health Authority, with public money, admitted liability when they had already been cleared of causation!
We refused to settle the claim with West Glamorgan Health Authority. The GPs’ legal team attempted to settle the case out of court with a gagging clause. We again refused to settle as my wife and I wanted to expose all the doctors’ individual negligence and dishonesty. The GPs then made a late application to the court to strike out our post death claim for compensation submitting that they had no duty of care to tell the truth following Robbie’s death and that any compensation for post death psychological damage and subsequent loss of earnings were unrecoverable.
On the day of the trial the judge applied his discretionary power and agreed to hear the GPs’ late application and decided to do so in private. After four days the judge ruled that the case against the GPs would be struck out as they had no post death duty of care to be honest to bereaved relatives. However, we were given leave to appeal to the Court of Appeal.
As mentioned above the case had not been settled as we had refused the offer of compensation from West Glamorgan Health Authority. Furthermore, even if there was no duty of care owed by the GPs, after death, both defendants [Health Authority & 5 GPs] had a duty of care to Robbie and had submitted false statements and falsified medical records to the court in an attempt to defeat our claim. The judge declined a trial to address these serious matters and the alleged negligence. Instead, my wife and I were informed, in no uncertain terms, that if we did not accept the £80,000 from West Glamorgan Health Authority and settle the claim, we would not be publicly funded to appeal this perverse High Court ruling. Under duress my wife reluctantly accepted the compensation, which was held by the court pending the outcome of the appeal.
It was at this stage that I realised that the NHS was in a position to cover up negligent deaths with impunity. Following Robbie’s death the NHS intentionally covered up its negligence and falsified the child’s medical records with the knowledge that the Ombudsman would not investigate the negligence or the cover up claims. The only option for us, at that stage, was to enter into civil litigation. However, the NHS was in full control, from the outset, as to whether or not the civil case would ever be heard in the civil courts. For example:
· If you are publicly funded and the defendant pays into court an amount of compensation that fully settles your claim, even without an admission of liability, your public funding would be forthwith withdrawn simply because you have received appropriate compensation for the damage caused. You will have no say in the matter other than to walk away without the compensation.
· Alternatively, if you are privately funded, you can proceed to trial even when the appropriate compensation has been paid into court and there has been no admission of liability. However, if the trial takes place in these circumstances, and you win your case, but are not awarded more than the amount previously offered, you will be liable for your own cost and the costs of the defendant from the date that the appropriate compensation was paid into court, which could be substantial and far greater than the compensation payment.
· However, if the defendant admits liability, the merits of your case will not be heard by the court irrespective of how important the issues are or much money you have. The only decision the court can make in these circumstances is how much the claim is worth if in dispute.
In the light of the above I decided in 1996 to challenge the way in which public funds were being intentionally abused to cover up medical negligence claims and more importantly how this exacerbates the grief of the bereaved parents and families. The escalating legal costs of medical negligence cases were obviously being caused directly by protracted proceedings as a consequence of delays, dishonesty and NHS cover ups.
Between 1993 and 1997 the then Shadow Health Minister for the Labour Party, Rhodri Morgan MP, fully supported Robbie’s case. In a letter to my Conservative MP, dated 9th November 1993, he stated:
"In having to understand the whole history myself with Mr Powell, I have come to the general conclusion that the entire complaints procedure rigmarole, through which Mr & Mrs Powell had to go, was a stitch-up from start to finish.”
I therefore initially raised the abuse public funds with Mr Morgan. He provided me with a copy of a Welsh Office circular regarding advice on medical negligence payments - I was horrified by the content of the letter and the contempt shown to victims of medical negligence. The circular was dated 28th March 1995 and was sent to all Chief Executives of NHS Trusts and Health Authorities in Wales and applied to Robbie’s case as the circular pre-dated the payment into court, which was made in May 1996. The letter stated:
NHS Trusts and Health Authorities
28th March 1995
Dear Chief Executives,
DELEGATED LIMITS – EX GRARATIA PAYMENTS IN CASES OF MEDICAL NEGLIGENCE
1. I refer to Appendix 4 of the December 1994 Financial Matters which explained that Out of Court settlements must be treated as ex gratia payments. This came into effect on the 1st January 1995. The amendment required health bodies to refer to the Department for approval all proposals involving out of court settlements exceeding £5,000, as with other ex gratia payments. These delegated limits have now been revised for ex gratia payments in clinical negligence cases and in personal injury cases that involve negligence subject to the conditions described below.
2. Where the conditions set out below are met and an ex gratia payment is proposed, NHS Trusts and Health Authorities in Wales now have delegated authority to approve such payments up to a limit of £1 million. Above this figure the Welsh Office has authority to approve payments up to £2 million. Treasury approval is required for a sum above this level. The main restrictions are that these revised delegated limits only apply to clinical negligence or personal injury cases that involve negligence, where appropriate legal advice has been obtained. For all other cases the existing delegated limit of £5,000 for trusts and health authorities remain in place. Al novel, contentious or repercussive cases, whatever their size must however, be submitted to the Department for approval.
3. Decaled guidance on the handling and approval of these payments is being prepared and will be issued shortly. In the meantime, and with effects from the date of this letter, NHS Trusts and Health Authorities in Wales may, subject to the conditions detailed below, proceed to approve ex gratia payments up to £1 million.
4. The conditions are:
i) that negligence is without doubt;
ii) that you are satisfied that appropriate legal advice has been obtained and is convincing;
iii) that the ex gratia payment is justified on value for money grounds, and all reasonable steps have been taken to minimise the payment;
iv) that steps have been taken, or being taken, to remedy any shortcomings in risk management or other procedures which led to the incident for which the damages had been claimed;
v) that all novel, contentious and repercussive cases, whatever their size, are submitted to the Department for approval;
5. The detailed guidance will recommend some appropriate approval procedures. In the meantime, ex gratia payments in excess of £5,000 should be authorised (by you, as Chief Executive, or by the Board).
6. Proposed ex gratia payments that are broadly equal to the expected maximum award by a court should not be approved solely on the grounds they avoid the legal costs that arise from court proceedings. In normal circumstances, the negotiation of a settlement out of court also benefits the plaintiff. This fact can, and should, be used whenever possible to agree a settlement well below the theoretical maximum.
7. I should emphasise that if a payment is made into court, and this is successful in encouraging a plaintiff to agree an out of court settlement, then the payment is still considered to be ex gratia. If, however, the plaintiff elects to continue action, any payment ordered by the court then fails to be classified as a compensation payment under legal obligation.
8. In order to be satisfied that this delegated authority is being properly administered, we shall, from time to time, seek a sample of cases where local approval has been given for ex gratia payments.
9. Cases exceeding NHS trusts and health authorities’ delegated approval of £1 million must be referred to the Department. The Department will, in addition to conformation that the conditions above have been met will also need the following information:-
i) an explanation of the background to the claim;
ii) a balanced view of the likely defence including legal and medical opinion when available;
iii) a legal opinion on the likely outcome of any court hearing and range of possible damages;
iv) clarification of the basis on which damages have been estimated;
v) an estimate of the possible savings for the public purse if an ex gratia payment is made;
vi) details of the proposed approach to negotiations with the plaintiff (including the initial offer and proposed upper limit).
In relation to cases that have been referred to the Welsh Office for approval it should be noted that the Department will generally require at least three weeks in which to consider such cases.
Any inquiries relating to this letter should be referred to Mrs V E Emment, HFM 2 Division, 01222 823774.
C L Jones
Cc Directors of Finance of
NHS Trusts and Health Authorities in Wales”
My understanding of this letter from a layperson’s point of view is this:
1. Don’t admit liability even when you know you have been negligent and caused damage or the death of a patient.
2. Don’t pay the victim what the claim is worth and attempt to pay them as little as possible. And
3. Only admit liability if the victim refuses to settle out of court.
As mentioned above the Welsh Office officials had already conspired with the GP defendants during the course of the 1992 Welsh Office appeal. I also took the view that West Glamorgan Health Authority had been in breach of the conditions, as set out in DGM(95)42, for the following reasons:
1. There had not been an investigation by the Health Authority into Robbie’s death and the negligence that led to his death had therefore not been identified.
2. It was claimed in the letter, which admitted liability for Robbie’s death that no individual clinician was to blame, which is contrary to an admission of negligence and liability.
3. No steps had been taken, or were being taken, to remedy any shortcomings in risk management or other procedures which led to the incident for which the damages had been claimed.
I raised my concerns about the settlement with the health authority along with the abuse of public funds regarding medical negligence litigation and in particular the six year delay in settling Robbie’s case. I contacted the Welsh Office requesting whether there was available guidance for the payment of medical negligence claims in Wales. The Welsh Office denied such guidance existed not knowing I already had in my possession DGM(95)42. Both the Health Authority and the Welsh Office denied that the conditions of DGM(95(42 had been in any way breached.
In December 1996 I wrote to the Welsh Affairs Committee regarding the settlement in Robbie’s case and the abuse of public funds regarding medical negligence litigation. My letter was ignored by the Chairman. In April 1998 I again raised the same issues with the Welsh Affairs Committee to be told in a letter dated 14th May 1998, by the Chairman, that:
“Our Committee does not lack the authority to look into these matters, but has many pressing demands on its limited time and resources. We do not believe that examining the particular case that you raise would be the best use of our time, though we will bear in mind the general points you raise on the costs of defending medical negligence claims when we next consider NHS matters.”
I raised my concerns about the rising costs of medical negligence litigation with the District Auditor which resulted in a formal complaint to the Audit Commission. Both the District Auditor and the Audit Commission took the view that West Glamorgan Health Authority had acted appropriately regarding the handling of my medical negligence claim and had complied with DGM(95)42 when it was obvious that was not the case.
In 1999 I gave oral evidence and written submissions to the Health Select Committee regarding, inter alia, the escalating costs of medical negligence litigation and the abuse of public funds when defending indefensible cases. Below is the relevant section of my evidence:
“ABUSE OF PUBLIC FUNDS RE: MEDICAL NEGLIGENCE LITIGATION
The Powells' case has cost the taxpayer of Britain hundreds of thousands of pounds and they are still no nearer the truth today than they were on the night Robert died. The Powells have raised the abuse of public funds with, inter alia, the Welsh Office, Iechyd Morgannwg Health Authority [the successor of West Glamorgan Health Authority which admitted liability for Robert's death], the Welsh Affairs Committee [on two separate occasions], various MPs, two CHCs and the Western Mail, but to no avail. It therefore adds insult to injury when the Government criticizes individuals for the rise in medical negligence costs when the majority of these costs are a consequence of an inadequate NHS complaint procedure and a lack of accountability within the NHS and Government. It is the inability to establish the truth and the denial of justice, which forces concerned individuals into medical negligence litigation.
I attach the Welsh Office's circular DGM(95)42 dated 28 March 1995; my letter of the 6 November 1996 asking the Welsh Office whether such a document existed; the Welsh Office's denial that DGM(95)42 existed dated 12 December 1996 [the Welsh Office was obviously unaware that I had secured a copy of DGM(95)42]; the Welsh Office's letter of 13 May 1997 confirming that Health Authorities and Trusts do not have to comply with the conditions of DGM(95)42; my initial letter to the Welsh Affairs Committee dated 18 December 1996 which received no reply or even an acknowledgement of receipt; my further letter to the Welsh Affairs Committee dated 16 April 1998; the Welsh Affairs Committee's responses dated 28 April and 14 May 1998 confirming that the Committee has the authority to look into the abuse of public funds in relation to medical negligence, but refused to do so; my recent letter to the Secretary of State for Wales dated 25 March 1999 and his reply dated 26 May [A-11].
I refer you also to the following documents in [A-8] - Western Mail [11/3/99] "MEDICAL LITIGATION PAYOUTS DOUBLE", my letter to the editor of the Western Mail [14/3/99], the subsequent Western Mail article, "THE HIGH COST OF A SECRETIVE NHS" [18/3/99] and Mr Powell's correspondence with the Welsh Affairs Committee [16/3/99 & 19/3/99].”
On the 19th July 2000 I met two representatives from the National Audit Office Wales who were doing a study regarding clinical negligence in Wales. The report was published on the 23rd February 2001.
The most frustrating thing for me is that if the abuse of public funds, regarding medical negligence claims, had been adequately addressed, two decades ago, when I raised this important issue, we may all be in a better position today. The victims of medical negligence could be receiving the appropriate compensation they deserve instead of being denied public funding.
NHS Advisor for Mistreatment.com