By Legal Futures’ Associates ARAG
Following a highly successful roundtable with some key figures in the clinical negligence sector, ARAG’s ATE Sales Manager, Mike Knight, talks about the discussion and the importance of such events for exchanging ideas, updating and educating colleagues and helping to formulate strategies that will help address the considerable challenges facing firms in the sector.
We decided to run a roundtable to address a few key issues that those working in clinical negligence litigation are facing. Like almost all walks of life, key among these is obviously the impact that the pandemic and subsequent lockdowns have had and are continuing to have on the work that we are all trying to do for the victims of medical negligence.
While Covid-19 and its consequences will inevitably dominate any discussion that concerns both the medical and legal worlds, the sector also has the uncertainty of proposals for the introduction of fixed recoverable costs hanging over it, so this subject was next on the agenda.
Finally, the question of how firms can continue to fund cases, which can take years to resolve and entail disbursement costs running to five figures, was raised. The squeeze on funding is not particularly new, but has been putting additional pressure on the finances of firms since the pandemic has been extending the duration of cases even further.
The quality and appeal of a discussion such as this inevitably lies in the expertise and diversity of the panel of voices assembled for the discussion and we were lucky enough to bring together five figures drawn from across the profession. While there was broad consensus around many of the issues, each of our panellists brought a unique perspective on the questions at hand.
Paul Rumley is the current Chairman of the Society of Clinical Injury Lawyers (SCIL), the members’ organisation representing specialist claimant solicitor firms working in the field of clinical negligence, as well as a partner at Royds Withy King.
Shahram Sharghy is a barrister at 9 Gough Chambers who has established a formidable reputation after successfully representing claimants in a series of challenging and noteworthy clinical negligence cases.
Suzanne Trask is a member of the executive committee of the Association of Personal Injury Lawyers (APIL), the not-for-profit campaign organisation dedicated to defending the rights of injured people, and a partner and Head of Adult Brain Injury at Bolt Burdon Kemp.
Peter Walsh is a patient safety and justice champion who is the Chief Executive of Action against Medical Accidents (AvMA), a charity that supports people affected by avoidable harm in healthcare, helps them to achieve justice and campaigns for improved patient safety.
Stephen Webber is the previous Chairman of the Society of Clinical Injury Lawyers (SCIL) and a partner and
Head of Individual Client Services at Hugh James who specialises in high value medical negligence cases.
I chaired the initial roundtable, which was held privately over Microsoft Teams but broadcast a few days later, again over Teams, to more than 200 solicitors working in the field of clinical negligence and other attendees, who were given the opportunity to ask questions of the panel after each section.
As well as the three key questions presented for discussion, the roundtable was prompted by a survey that we conducted at the end of last year, which asked solicitors about their recent experiences and expectations practicing in the field of clinical negligence.
Key among the survey’s findings was that, while many firms working in the field had seen a significant reduction in the number of enquiries they were receiving from potential clients, since the start of the pandemic, a very large majority expected cases to return to normal levels, once the impact of the coronavirus has subsided.
The survey also revealed that close to two-thirds of solicitors were experiencing delays in getting medical reports for clients, and considerably more than half were also seeing delays in receiving medical records. This situation may well have worsened since then, because the survey was carried out shortly before the latest spike in infections, after Christmas, which piled even greater pressure on clinical resources.
These issues helped fuel the first discussion about how the pandemic has impacted the sector and what the future holds for both patients and the solicitors helping them too access justice. First though, our panellists were very keen to highlight the work that people from all branches of the NHS have done throughout this incredibly difficult time, and pay tribute to them.
There was general consensus from all involved that, after some unavoidable initial difficulties and a sudden cessation of new enquiries, most aspects of the legal system had adapted remarkably well to the restrictions and challenges created by the pandemic.
As well as commending health workers and social care staff, Peter Walsh went on to praise everyone in clinical negligence for ‘keeping the doors open and keeping things moving, on behalf of injured patients and their families.’
There was also consensus that a predicted flood of cases stemming from the treatment of Covid-19 patients was unlikely, but widespread concern at the prospect of cases stemming from delays to diagnosis and treatment, as an indirect impact of the pandemic.
The importance of having a diverse panel representing different parts of the clinical negligence system, was underscored by Shahram Sharghy who brought a view from the bar. While he agreed that the system had coped “remarkably well” since recovering from the initial disruption brought about by the pandemic, he highlighted a couple of areas in which problems persisted.
The incredible pressures on healthcare trusts have made it more difficult to access clinicians to provide witness statements, contributing to significant delays in some cases. He also said that some cases involving more than one trust were proving more difficult, and highlighted that the pandemic was occasionally being used as a blanket justification for very long delays in some trusts getting reports from their own medical experts.
On a more positive note, Shahram pointed out that alternative dispute resolution was still proving to be effective and that its use had actually increased since the first lockdown, providing an important route to resolving cases for patients and trusts.
Moving on to the question of fixed recoverable costs, I asked the panel whether they thought there was still appetite in government for implementing the Civil Justice Council’s recommendations and what they thought the next twelve months had in store.
Paul Rumley suggested that, while the issue had undoubtedly seen little progress or discussion during the pandemic, there were clear indications that the government was gearing up to progress the policy and that a consultation was ‘still imminent’.
Suzanne Trask made it clear that APIL’s position on any reform is that there must be a fixed process before fixed costs can be considered, and went on to stress the importance of embedding learning and improvement of patient safety into any reform of the system.
Based in Wales, Stephen Webber was able to share the benefit of his firm’s experiences with the fixed costs scheme for lower value claims that already operates there, which he described as ‘very poor’.
Finally, I asked the panel about the issues around funding which have been exacerbated by the delays to cases being caused by the pandemic. Stephen Webber detailed all of the options available to firms, including the inadequacies of the remaining Legal Aid system. He also noted ARAG Advance, our own disbursement funding solution among the options available to firms.
There was again broad consensus around the significance of the risks and challenges facing firms, especially since the onset of the pandemic, and the need for them to make use of all of the options available.
We recorded the roundtable with our panellists a few days before the event itself, to allow time to edit out the small talk and getting to the duration we had allowed for. On the day, we played out each of the questions separately, allowing time for questions from the audience between each one.
Microsoft Teams served our purposes well, though one of our panellists, Paul Rumley had difficulties joining the question and answer session with our audience. This turned out to be beneficial, as we were able to arrange a separate session with Paul, during which he was able to address some of the many questions we did not have time to answer, on the day.
Like so many organisations, running such virtual webinars has been new to us this year. ARAG has run a few similar events for our insurance brokers partners, but this was the first of its kind and scale that we have produced for law firms.
We learned a lot throughout the process of putting it together. It was always intended as an opportunity to get a perspective of the clinical negligence sector from the various parties supporting and representing claimants, but I think we would definitely benefit from inviting a representative of defendants to contribute their views and experiences.
Behind the scenes, it would also help to have a colleague alongside to filter and select the questions to put to the panel, as they come in. We were quite surprised by the level of engagement and number of questions that solicitors wanted me to put to the panel, and selecting each one live, while listening to the previous response was challenging.
The huge appetite for the event, among both our panellists and the audience, demonstrates quite how important such opportunities to discuss such critical issues are, especially at the moment. Between questions all of our experts expressed how such opportunities have been missed.
The need for experts across any discipline to discuss, debate and collaborate on the major issues facing them, is fundamental to any sector, but particularly in the field of clinical negligence litigation which faces so many significant challenges.
As well as providing, what in normal circumstances would be a regular opportunity for representatives of key organisations to exchange ideas and formulate policy, such events also offer a valuable learning opportunity for members of the audience, and the event was accredited through APIL for a total of 1.5 CPD hours.
However much they enjoyed the opportunity, I would like to thank all of our panellists for their invaluable contributions and the audience for attending in such numbers and engaging with their inciteful and provocative questions.