The National Health Service is commended worldwide for providing free healthcare to UK citizens. It is not without its faults, however, nor is it exempt from unfortunate negligence claims. We speak with Suzanne Munroe, a Clinical Negligence expert, who has many years’ experience in this complex field. She discusses the upcoming challenges facing claimant and defendant lawyers alike, and the tremendous impact effective legal help can have on a patient’s life.
In the past few years what are the biggest challenges faced by clinical negligence lawyers? How have these impacted your work in this field?
In 2013, due to the Jackson reforms, Clinical Negligence was more or less removed from the scope of Legal Aid funding. Only cases of neurological/brain injury caused within the first 8 weeks of life remained within the scheme. It has led to many non-specialists entering the field and not doing the work properly through ignorance of the complexities and subtleties.
In addition, cases are now cost budgeted, which is a good idea in theory but in practice has led initially to inordinate delay in proceeding with claims within the courts.
One of the biggest challenges ahead is the Department of Health’s proposed fixed recoverable costs regime, which intends to limit the amount of costs recoverable by the Claimant in a successful case based on the value of the claim. The scheme is intended to be based on value, rather than complexity and numbers of experts needed. The Department of Health is driving the costs proposals in a bid to save NHS costs, yet in fact there is a real risk that this will push specialist clinical negligence firms out of the market and encourage non-specialist ‘claims farming’.
The proposals will also create an uneven playing field. Claimants in these cases will have to operate under a strict costs-limited regime, yet the Defendant will have no such restrictions placed on their costs. Many vulnerable Claimants will be unable to bring a claim as the cost of investigating their case will fall outside the costs allowed by the regime. Thus, some of the most vulnerable members of our society may not have access to justice.
You have spent almost 25 years specialising in clinical negligence claims; how has personal injury law, and the claims made by clients, progressed throughout the years?
When I took on my first Clinical Negligence case nearly 25 years ago, we had the luxury of taking on cases where we just thought there ‘was something in it’. Now we very carefully risk assess to see whether the case is likely to pass all the rigorous tests, including whether there is a risk to the business. Although this is more restrictive, we are now much better at assessing cases at an early stage and therefore less likely to take on cases that do not succeed. This is better for the clients we represent. It is not always easy to say no but I have learnt that that is far better than giving unrealistic expectation to an individual who is vulnerable and damaged already.
How do you think the NHS and medical providers can improve and change, to limit clinical negligence claims?
Many cases could be avoided with more communication and early admissions of fault. A more open and honest internal investigation process would result in earlier admissions of fault in many cases. Many patients want an explanation and an apology and if this was provided, I believe the amount of clinical negligence cases would decrease. Earlier admissions of liability would avoid the cost of Claimant solicitors fighting each stage of the case. It would encourage a collaborative litigation environment which would mean quicker, more efficient litigation, better access to justice for patients, and save money for all parties.
Your firm has been labelled as Yorkshire Law Firm of the Year three times; what do you think enabled you to achieve such a title, and how are you progressing to maintain such a high recognition?
Historically, Switalskis has a strong reputation for representing some of the most vulnerable members of society, and we have been able to maintain this reputation by continuing to provide high quality legal services to people from all walks of life, whilst nurturing new areas of work to ensure the firm’s continued commercial success. Looking to the future, we have continued to strengthen in key areas, including the firm’s wide geographic coverage, which now spans the Yorkshire region (South, West and North) as well as strategic development in key legal areas including high-value complex claimant work, which we undertake on behalf clients based across the UK.
What are the most common types of case you receive in regards to clinical negligence?
I deal with a lot of birth injury claims to both mother and child and I specialise in brain injury cases, mainly where the child has a brain injury leading to cerebral palsy. There is still the issue of the NHS being significantly understaffed in certain areas and it is well known that there is still a significant shortage of midwives.
How common is it for a defendant in a personal injury claim to make the process difficult? How complex can such cases become?
Too common, although it is fair to say that there are certain defendant firms who are much more collaborative in their approach and we usually work well together for the benefit of the claimant once we have established liability. It is still a fight, particularly with certain defendant firms who take every technical point and seem to lose sight of the injured individual at the heart of the process.
As a Thought Leader, what is one piece of advice you would offer to a professional who is new to clinical negligence claims?
“Leave no stone unturned”. By this I mean it is crucial to look very carefully at the factual and medical evidence throughout the case and to keep going back to the facts and testing the evidence. Always imagine that your case is actually in court and will be looked at in the minutest of detail.
Mini Questionnaire – Food for Thought’:
What has been your flagship piece of work and how did you apply thought leadership to this scenario?
Rather than selecting a case (as there are many) my flagship piece of work is the team that I have created and fostered. I could not do this job without my specialist and dedicated team of lawyers and support staff. I lead by example and have created a working environment where I encourage collaboration between colleagues, who are also available to assist each other for the ultimate benefit of the client.
What has been your biggest achievement in the past 12 months?
To successfully persuade a hospital trust to look again at the way they were treating my 34-year-old client who has a chronic pain syndrome and is opiate dependent as a direct consequence. I was instrumental in securing her discharge home from hospital to reunite her with her young family, after 8 months as an inpatient. I genuinely believe she would have succeeded in her planned suicide attempt if she had remained in hospital any longer. In November 2016 I then settled her case for £1m plus annual payments for life for care (periodical payments). The defendants had originally offered to settle this case for £35k.
Do you have a mantra or motto you live by when it comes to helping your clients?
“Persistence beats resistance”.