Potential for much bigger Schedules of Loss in catastrophic injury cases

CCC v Sheffield Teaching Hospitals NHS Foundation Trust [2023] EWHC 1770 (KB) was the first quantum only birth injury case to go to trial since JR v Sheffield Teaching Hospitals NHS Foundation Trust over six years ago.

Sadly CCC has severe spastic quadriplegia as a result of admitted negligence in the management of her birth. She is PEG fed and has daily seizures. Her life expectancy was agreed at to age 29. At trial she recovered a substantial award of damages succeeding on various key issues relating to care and equipment:

• No deduction was made for gratuitous family care, to reflect complexity and challenges faced by her family.
• A 2 to 1 regime (including two waking night carers indefinitely) was allowed together with increased agency care costs (including the cost of registered nurses).
• Recovery of the cost of a home hydrotherapy pool.

CCC advanced a lost years’ claim (for earnings during the years of her working life post age 29), but accepted at trial that the court was bound by the decision in Croke v Wiseman (1981). Following judgment she was given permission to challenge the Croke decision in the Supreme Court. A hearing date for the appeal is awaited.

Comment

The decision means there are likely to be more arguments in future regarding care and that home hydrotherapy pools are likely to remain a contentious issue. The need for thorough and reasoned expert evidence cannot be overstated and knowledge of local care rates and facilities is vital. If Croke is overturned, reserves for cases where there is a reduction in life expectancy will need to be reviewed and are likely to increase.

New streamlined process for lower risk clinical trials may encourage more sponsors to conduct clinical trials in the UK

A new scheme will see initial applications for the lowest-risk trials processed by the MHRA within 14 days instead of the statutory 30 days. The scheme covers:

• Phase 4 trials - post-marketing or surveillance trials of licensed medicines.
• Some Phase 3 trials.
  
  These trials traditionally involve at least 300 participants, are usually multicentre, including pivotal pre-marketing trials and evaluate the efficacy and safety of the drug, usually with a comparison to placebo or standard of care treatment.

These clinical trials will fall within the scheme provided the sponsor can demonstrate the trial meets the MHRA criteria, which include confirming there are no known safety issues with the medicine being investigated.

Comment

It is the government’s ambition for UK to become one of the best places in the world for clinical trials. The new scheme is simply a streamlined process designed to speed up approvals. The ‘lower risk’ badge does not obviate the need for sponsors and host institutions to have appropriate indemnity insurance in place and ensure that participants give informed consent.

Elite athlete welfare will remain a focus for claims litigation

There is likely to be a continuing focus on cases related to injury in elite sport and in particular on the topic of concussion on which the group action litigation will continue to advance.

Technology such as smart mouth guards, which alert medical staff of a significant head acceleration event and which was has already been used in the Six Nations Championship this year, will assist in decision making around return to play. It will not only be the athlete’s physical welfare that needs to be considered, but also their mental health which needs to be looked after.

While governing bodies and clubs may be at the forefront of any claims the focus will often come back to the clinical decision making of doctors and other health professionals.

Comment 

Elite sport organisations and their insurers need to review governance structures in particular around consent and record keeping to ensure medical decision making can be supported and evidenced. New technology will play an ever increasing role, but the duty on clubs and their medical staff to focus on athlete welfare and be able to evidence this is as important as ever.

Early preparation will be key to managing the impact of the Personal Injury Discount Rate (PIDR) Review

On 16 January 2024, the Ministry of Justice (MOJ) published a further call for evidence on topics relevant to modelling claimants’ likely return on investment. This includes:

• claim and claimant characteristics
• claimant investment experience
• investment expenses
• changes since the 2018 call for evidence
•  the impact and practicalities of adopting a dual/multiple PIDR
• the way in which compensation payments are made.

The call for evidence closes on 9 April 2024 and a response document is due to be published the same month.

The PIDR is due to be commenced by 15 July 2024. Dual/ multiple rates were the subject matter of a 2023 call for evidence where the MOJ response was that it would not be recommending a policy position on deciding whether a dual/ multiple rate should be introduced at this time. It is clear from the call for evidence that the expert panel will continue to consider dual / multiple rates.

Comment

With less than six months to go until the commencement of the review, insurers should consider performing an analysis of claims due to settle in 2024 and devise a strategy now – for example, making Part 36 offers. Risk could be reduced by using periodical payments orders and putting more heads of loss into them. Further information on the PIDR review including the use of dual/ multiple rates can be found in the Medical Malpractice and Casualty Forward View 2023.

Major change to costs regime for lower value clinical negligence cases

A fixed recoverable costs regime for lower value clinical negligence claims valued at up to £25,000 (excluding stillbirth and neonatal claims), is expected to come into force in April 2024, although a “significant delay” is possible according to media reports.

The regime’s focus is early exchange of evidence followed by a mandatory ‘stocktake’ by the parties. If the matter is not resolved following the ‘stocktake’ phase it will proceed to neutral evaluation (by an experienced legal professional). Defendants will be responsible for paying the costs of neutral evaluation. Claims that cannot be resolved without litigation will be governed by a new Low Value Clinical Disputes protocol. 

Comment

The regime for clinical negligence claims up to £25,000 is designed to achieve better proportionality of legal costs to the value of the damages claimed. It sits alongside a fixed recoverable costs scheme for personal injury claims valued at over £25,000 up to £100,000 (introduced in October 2023), which does not exclude clinical negligence claims in certain limited circumstances .

Once in force it will be interesting to see the stage at which the lower value cases settle and the extent to which both schemes assist the government to achieve its aim of “speedier justice”. The government thinks there will be few lower value claims that will need neutral evaluation as the majority will have been resolved by that stage. Further information on both schemes can be found in the Insurance Review 2023.

Medical Malpractice Insurance Forward View 2024 

This article is part of Capsticks’ Medical Malpractice Insurance Forward View 2024. Read the other articles featured in this publication below:

• Increased use of ‘digital health’ will bring new challenges for developers, manufacturers, suppliers and users
• Spotlight on four cases
  • The future of secondary victim claims: “a medical crisis is not an accident”
  • Informed consent will remain a patient-centric process, but clinical judgment still has a role to play
  • Will there be more claims based on material contribution following the Court of Appeal decision in Holmes?
  • Dispute resolution: the focus will continue to be on “out of court” methods with litigation as a last resort

Get in touch 

Aiming to be the firm of choice for medical malpractice insurers, we advise and support on all aspect of claims and inquests. 

To discuss how any of these issues may affect your organisation, please get in touch with Majid Hassan or Chery Blundell.