Is there a real future for Clinical Negligence work31/03/13
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
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
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.