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. Practitioners have warned that personal injury claimants may be priced out of the courts.
  • Furthermore, the Ministry of Justice is currently discussing the possibility of raising the small claims limit for PI claims from £1,000 to £5,000, which could largely remove lawyers from the process and price out yet more claimants. There are also plans to scrap general damages for minor soft tissue injuries like whiplash, as part of George Osborne's effort to tackle a 'compensation culture.'
  • A review of LASPO, court fees and tribunal fees is planned for late 2016/early 2017; 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 Litigation Authority (NHSLA) 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 Law Society Chief Executive Catherine Dixon, who was also the former CEO of the NHSLA.