The real reason why claimant solicitors cost the NHS so much in legal fees

Article written by David Dawson, Consultant Solicitor

We clinical negligence lawyers often get a bad press, with the red tops regularly running stories about the legal fees paid to claimant lawyers by the NHS. There is another side to this (of course, there always is) which the story of my client Ted (not his real name) will help to tell.

It’s a tale that many clinical negligence practitioners will find familiar, and demonstrates the obstacles placed in the path of even the most meritorious Claimants by a system which appears to them to be designed to frustrate and delay at every turn.

Ted lived with his wife in Cumbria. In 2009 he’d had a stroke which left him with some disability affecting his left side.  He was 63.  He was able to walk with a stick, but had got on with his life and needed only a modest amount of help and support from his wife.

In September 2011 he fell whilst at home, and felt immediate pain in his left hip. He was  taken to the local hospital and x rayed, and it was decided that he was well enough to go home. Crucially, the doctors examining him and checking the x ray of the hip said that there wasn’t a fracture. When he was asked to stand, he became violently sick and the staff decided to keep him in hospital overnight.

The overnight stay extended and he continued to feel unwell, eventually developing a pulmonary embolism. He was encouraged to move around and become mobile,  and had several painful sessions of physiotherapy. Despite this, the pain in his hip continued and after 11 days it was decided that another x ray was needed. This time a displaced fracture was seen and Ted was told that he needed a hip replacement.

He had the operation at the beginning of October but it didn’t work. The artificial joint was not cemented into place, and was loose. Ted became extremely ill with a series of infections and was close to death’s door. After many arduous months it was decided that he needed to have a girdlestone procedure (where the entire joint is removed). That operation took place at a different hospital at the end of July 2012, 10 months after he fell.

Ted recovered well and for the 1st time was free of pain. However, he never regained the ability to walk, and could not look after himself. He needed considerable care and help from his wife, and their kind landlord permitted adaptations to their rented home to make Ted’s life easier.

Ted and his wife were so angry at all that had happened that they used the hospital’s complaints procedure to try to find out what had happened.

At a complaint resolution meeting the Hospital apologised for all of the pain Ted had had to endure, but crucially it was maintained that the x ray taken when Ted had first gone to the hospital was normal, and  the delay in finding the hip fracture had made no difference to what had happened to Ted.

Understandably they were dissatisfied with the hospital’s response, and I was instructed to investigate a clinical negligence claim on Ted’s behalf. It took some time, as these cases often do.  I obtained very helpful supportive reports from a consultant radiologist and a consultant orthopaedic surgeon. The gist of the reports was that the hip fracture was visible on the first x rays, and importantly, that the fracture at that point was not displaced. The fracture could then have been pinned, and it was more than likely that Ted would have recovered to his pre accident level of mobility. Instead, he had to have a hip replacement that failed and went through many months of illness and pain. He was essentially housebound and unable to care for himself, all because of the failure to interpret the x ray correctly and decide on the proper treatment in the light of those findings.

Formal details of the claim were submitted to the hospital. As is often the case, the NHS lawyers denied liability in their response. We started Court action  in November 2014.

After some delay, the hospital’s defence arrived. Again, as often happens, the defence made admissions which could have been made in their  formal letter of response, but they still denied responsibility for anything but a delay in diagnosing the fracture.

An analysis of the defence revealed considerable inconsistencies in the Hospital’s position. I decided to use this to try to clarify the hospital’s position using a formal process (a part 18 request, for the lawyers reading this).  When answered, that clarification was enough in my view to justify an application to the Court for summary judgment – a court order confirming that Ted had won, with the Court only having to decide how much compensation he should get.  I invited the Hospital’s solicitors to agree to that step but their resistance continued until eventually they capitulated and accepted that Ted’s fracture ought to have been diagnosed when he was first admitted to hospital; and in those circumstances the fracture would have been pinned. He would have avoided a hip replacement and the problems which followed that operation. He would probably have got back to his pre incident levels of mobility.

The admission came in November 2015, over 4 years after Ted had fallen.

Negotiations then began and a six figure settlement was agreed  in March 2016.

It won’t come as a surprise that the costs of the case were substantial. At every turn until the final straight the hospital denied responsibility and refused to accept that there had been avoidable errors in Ted’s treatment. Opportunities for the Hospital to admit fault were many. The complaint process ought to have provided clarity but instead positions were entrenched. I offered mediation but this was declined. Despite pointing out the deficiencies in the case put to the Court by the Hospital, I was forced to apply to the Court for judgment before the Hospital finally accepted responsibility.

Sadly Ted died of an unrelated illness a few weeks after the case was concluded.

Of course, it is difficult to say how much could have been achieved in savings with an early admission and settlement but one thing is clear. An earlier admission by the Hospital and an early settlement of the case would have given him and his wife the financial support they desperately needed to help Ted cope with the severe disability he suffered as a result of the poor medical care given to him in 2011. After making provision for his widow, the bulk of Ted’s compensation was left to charities.

To clinical negligence lawyers around the country this will be a familiar story. It happens all too often and causes immense suffering to those whose lives have been adversely affected by negligent medical care. Of course, it is right that Claimants have to prove their cases, but there are some instances where an early acknowledgement of fault and a willingness to settle a case promptly would benefit not only the Claimant in getting the help needed, but also the NHS in reducing the costs incurred. Ted and his wife went through almost 5 years of problems and difficulties before the case was settled. When David last met Ted, shortly after the settlement was agreed, he was in good spirits and looking forward to a future made more comfortable by the compensation he was rightly entitled to. Sadly, he was unable to enjoy that future.