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Is there a real future for Clinical Negligence work
As the legal profession gears up for massive changes over the next 18 months a big question for
solicitors firms currently doing clinical negligence claims "is there a real future for clinical negligence
work?"
Clinical negligence claims have grown at a significant rate over the last 5 years and in particular over
the last 3 years. In the national Health Service Litigation Authority's (NHSLA) 2012 Annual Report
they reported a 30% increase in claims over the previous year and a 50% increase in the last three
years. The MDU and MPS reported a similar increase. On that basis it is reasonable to assume the
number of clinical negligence claims will continue to grow.
AvMA last year estimated that there were approximately 1,000,000 adverse incidents in a typical year
in the health service, to which can be added adverse incidents in GP and Dental GP practice and in
private medicine. These estimates confirm the 2001 Audit Commission report which estimated
850,000 adverse incidents in a typical year in the health service. There is no reason to think that
these recent estimates are not realistic and in fact may be on the low side.
Many think the increase in claims reflects a growing awareness on the part of the public that they
have a right to claim after a series of national scandals leading to the Bristol Heart Inquiry, the Alder
Hey Inquiry/Litigation, the Mid-Staffs Inquiry/Litigation, and closer to home the Liverpool Women's
Hospital Rowlands Inquiry. Add to that the PIP (silicone breast claims) and the De Puy Hip litigation
both of which have given rise to concerns about clinical care.
The NHSLA acknowledges that major growth in claims in recent years has been in resepct of CFA
work and there is no doubt that these type of cases seem set to grow further in the period up to the
start of the Jackson Reforms.
Clinical Negligence solicitors are pondering what will happen after the Jackson Reforms come in and
success fees currently recoverable from the Defendants are abolished.
It is interesting to note that many experienced solicitors think that one way cost shifting will provide
some comfort to those solicitors specialising in clinical negligence. In addition that ATE insurers are
busy developing business models to support Claimants and their solicitors in funding of clinical
negligence claims. However, at present American style contingency funding litigation seems a long
way off.
The Coalition Government recently acceded to all-party representations to maintain public funding for
clinical negligence birth related claims and claims arising in the neonatal period up to 8 weeks from
birth. This was an important victory for clinical negligence lawyers who had campaigned vigorously to
maintain public funding for all clinical negligence claims. This campaign was supported by Claimant
solicitors, the NHSLA, many sections of the Judiciary and Lord Justice Jackson himself.
What of the future and the structural changes in the legal profession which are to take place?
No one yet knows what impact the advent of Alternative Business Structures (ABSs) might have on
this area of work as amongst others Co-operative Legal Services develop their market presence and
predatory international companies enter the arena. In April 2012 the Solicitors Regulation Authority
(SRA) cleared the Australian takeover by Melbourne-based Slater & Gordon of top- 100 firm Russell
Jones & Walker by licensing it as an ABS. RJW specialised in clinical negligence and owned Claims
Direct, the leading consumer brand in personal injury. In February 2012 it was reported that Irwin
Mitchell were preparing to become an ABS.
One thing seems certain in the years ahead that with clinical negligence Claimants expected to
increase in numbers there may be significant "access to justice" issues in the future unless solicitors
and counsel adapt to the changing market demands and find ways of meeting funding this important
area of personal injury work. In my opinion there is no reason to think that this important area of work
will not continue to thrive in the future.
SCOTT DONOVAN
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