Personal Injury and Clinical Negligence

In a nutshell

Personal injury and clinical negligence lawyers resolve claims brought by people who have been injured, either as a result of an accident or through flawed medical treatment.

The claimant lawyer usually acts for one individual, but sometimes a claim may be brought by a group of people – this is a class action or multiparty claim. The defendant lawyer represents the party alleged to be responsible for the illness or injury.

In most PI cases the claim against the defendant will be taken over by the defendant’s insurance company, which will then be the solicitor’s client. Local authorities are common defendants in relation to slips and trips, while employers usually end up on the hook for accidents in the workplace. In a majority of clinical negligence cases, the defendant will be the NHS, although private medical practitioners and healthcare organisations are also sued.

What lawyers do

 

Claimant solicitors

  • Determine the veracity of their client’s claim and establish what they have suffered, including income lost and expenses incurred. The value of the claim (so-called 'quantum') will be based on this.
  • Examine medical records and piece together all the facts. Commission further medical reports.
  • Issue court proceedings if the defendant doesn’t make an acceptable offer of compensation.

Defendant solicitors

  • Try to avoid liability for their client or resolve a claim for as little as possible.
  • Put all aspects of the case to the test. Perhaps the victim of a road traffic accident (RTA) wasn’t wearing a seatbelt. Perhaps the claimant has been malingering.

Both

  • Manage the progress of the case over a period of months, even years, following an established set of procedural rules.
  • Attempt to settle the claim before trial or, if a case goes to trial, brief a barrister and shepherd the client through the proceedings.

Realities of the job

  • The work is driven by the procedural rules and timetables set out in the Civil Procedure rules, which are strictly enforced by the courts.
  • There is a mountain of paperwork, including witness statements and bundles of evidence.
  • Claimant lawyers have close contact with large numbers of individuals and need good people skills.
  • Defendant lawyers need to build long-term relationships with insurance companies. Clin neg defendant lawyers need to be able to communicate well with medical professionals and health sector managers.
  • PI lawyers have large caseloads, especially when dealing with lower-value claims.
  • There is some scope for advocacy, although barristers are used for high-stakes or complicated hearings and trials. Solicitors appear at preliminary hearings and case management conferences.

Current issues

  • The fatal crash of a Tesla Motors' Model S car while in 'autopilot' function raises new questions on product liability and regulation in situations where a device takes over some, but not all, of a driver's responsibility. Goldman Sachs predicts that the driver assistance system and autonomous vehicle market will grow from $3 billion in 2015 to $96 billion in 2025, so expect to see plenty more legal action in this area.
  • Claimant lawyers working on RTAs have been required to increase their use of the Ministry of Justice Claims Portal, which processes whiplash medical assessments and low-value personal injury claims caused by events such as RTAs and workplace accidents. The use of online 'portals' is supposed to allow greater communication, facilitate early settlements and save costs in uncontested cases. Improvements to the system were planned for 2016, but have been postponed until discussions on reform are complete.
  • The Legal Aid, Sentencing and Punishment of Offenders Act of 2012 (also known as LASPO or the Jackson reforms) withdrew legal aid for most clinical negligence claims, placed a ban on referral fees in personal injury cases, and ruled that successful claimants can no longer recover success fees or after-the-event insurance premiums from the losing party. As a result, the legal sector has become more competitive, and larger PI firms have been diversifying into related areas like clinical negligence. Mergers have been the only option for some firms, further adding to the trend for consolidation in the legal market. Law firms are also investing more time and money in marketing strategies in order to target clients directly.
  • In 2015, the Government introduced so-called 'enhanced court fees' for high-value claims. Anyone making a claim worth £10,000 or more now pays a fee of 5% of the claim's value, up to a maximum of £10,000. This increase on the previous flat fee of £1,920 for all cases over £10,000 has been criticised by some in the profession as putting a price on justice. 
  • Both the Law Society and legal professionals have voiced their opposition to plans to remove the right to recover general damages for soft-tissue injuries like whiplash. These plans were originally announced as part of George Osborne's effort to tackle a 'compensation culture.' 
  • In February 2017, the Lord Chancellor Elizabeth Truss announced that the personal injury discount rate – a calculation used to determine the compensation owed to claimants who have suffered life-changing injuries – will be reduced to minus 0.75% from 2.5 per cent. The change came into effect in March 2017, and is anticipated to dramatically increase the damages awarded to claimants pursuing future loss actions.
  • A review of LASPO, court fees and tribunal fees is planned for April 2018; the rethink comes after a widespread backlash within the legal sector, which criticised the reforms for increasing barriers to justice.
  • Concerns have recently been expressed about the quality of defence counsel available to clinicians. The NHS Resolution has reduced the number of firms on its panel, and increasingly demands that those who remain adhere to very strict rules when responding to claims. The Department of Health has also proposed fixed recoverable costs on clinical negligence claims, which has drawn strong criticism from the Bar Council as well as the former Law Society Chief Executive Catherine Dixon.
  • The NHS paid out over £1.08 billion in clinical negligence damages between 2016 and 2017, according to the NHS Resolution's annual report. Despite a 2.5% dip in the number of new negligence claims, the actual cost of the damages tied to them rose by 14% on the previous year. 50% of these were maternity claims. The report led to calls for legal reform in order to make compensation both reasonable and affordable; the idea of imposing fixed recoverable costs on claims up to £250,000 has been suggested as a possible solution.