Patient safety - new measures to inform the public about mortality rates

I am heavily involved in clinical negligence claims and something that always staggers me is the blissful ignorance that the general public have regarding just how dangerous hospitals can be. Most people genuinely believe that hospitals set high standards that are adhered to rigidly so far as care and quality of service is concerned.

This is a fallacy. Most hospitals can be very dangerous places indeed.

Clinicans are over stretched and dis-enfranchised (more consideration given to their private nest egg practice than their NHS to do list), nurses are underpaid and overwhelmed with work and hygiene standards are at third world levels in some hospitals. Add to this cocktail excessively wasteful management and you have a lethal combination.

Grim reading but when you do the job that we do ... you get to thinking like this.

So with that backdrop I was pleased to read that new information is now available regarding mortality rates. The Summary Hospital-Level Mortality Indicator (SHMI) has been rolled out by some quango or other and seems to actually provide good info. However somewhat disappointingly the info is not easily accessible.

After some research work on Google I found this little snippet which underlines the importance of these metrics in determining the quality of care in UK hospitals:

In the period from 1 April 2010 to 31 March 2011, there were:

■ 14 trusts whose SHMI value was ‘higher than expected' under both methods and;
■ 12 trusts whose SHMI value was ‘lower than expected' under both methods

So 14 hospitals underperformed on this crucial metric (assuming a "higher" mortality rate is not a good thing) and guess what...you didnt read about this in the news!!! Hard to fathom but this news didnt get any airtime as far as i can see.

I will post a link to the SHMI when I find one but for now I thought I would flag this up as something that may well prove very useful to patients in the future.

Clinical Negligence Claims: The threat posed by reform

The Law Society recently published a response to the much heralded No win No fee "reforms" being forced through by the Ministry of Justice (MOJ). One of the more worrying aspects of the proposed reforms is the suggestion that legal aid will no longer be allowed for any clinical negligence cases. This puts the clinical claims in the same bracket as general personal injury cases, which as any self respecting injury lawyer will tell you, is completely wrong. The two areas are incomparable in terms of the complexities and investment of time / energy / cost.

The Law Society have fought back with a rigid counter lobbying exercise which will focus on the following:

o   Government proposals to remove CN claims from the scope of legal aid conflicts with the views of Jackson LJ that there should be no further cutbacks in availability/eligibility

o   The possibility that legal aid may still be available to fund ATE premiums in CN claims is likely to be unworkable/uneconomical in practice due to the cost of premiums as there is a high failure rate in such claims 

o   As CN claims involve much higher risk many lower value CN claims may become uneconomical to pursue

o   Many seriously injured CN victims will lose up to 25% of their damages under the non-recoverability rule which could result in more victims having to rely on state benefits

o   Up to 40% of CN claims fail and in many cases the NHSLA recovers its own costs – this will not happen under QOCS

o   The increase of 10% in damages across the board coupled with QOCS could result in higher outlay for the NHS

We shall wait and see how things turn out but there are likely to be more losers than winners when legal aid is finally pulled for medical negligence related claims.

Personal injury referral fee ban

The big legal news today is that the government is looking to ban personal injury referral fees when they roll out the new legislation probably around autumn 2012. What this will do to the industry lord knows but if it really does happen there will be some casualties. A lot of personal injury law firms rely solely on referred leads and they will not have a plan B if this rule comes in.

Those firms with vision and a sensible business strategy saw this coming years ago and have turned into marketers rather than purchasers. 

Im afraid the writing is on the wall for the claims management industry and the sooner law firms realise that the better

Payment Protection Insurance (PPI) - How the banks got smart when it comes to selling this awful product


I am just in the process of applying for a personal loan to finish off a house extension. Real pain but in order to spec up and make sure the interior is spot on, I need a cash injection.

So I tried Santander and Sainsburys who currently lead the market as two of the best lenders with a headline (note thats headline - not by a long shot the rate you will get..!) rate of 7.4%.

I made the Sainsburys application online and then followed up with a phone call - they didnt mention at any point PPI and said this was because I opted out during the online form process. Fair enough and quite right ... because I did opt out and have no interest in this insurance.

Contrast this with Santander. This application was made over the phone and took an agonising 35 minutes to complete. On at least 5 occasions sprinkled across a carefully crafted sales script PPI raised its ugly head. They very slyly kept reminding me that I should think twice before taking on a debt like this without adequate protection bla bla... how safe is my job etc. Safer than yours my friend I thought but it doesnt pay to tick these poor kids off and as I want the loan I kept my mouth shut.

The worst of it was when the helpline chap dropped a very subtle hint that my loan application might be adversely affected if I didnt explore the PPI product.

As if that wasnt arduous enough I have been told to expect a follow up phone call revisiting the key aspects of my (successful) application and when I asked whether this too would involve a PPI  chat ... I was told that it almost certainly would.

So in short - Santander are pushing PPI massively.
It is hard sell.
It is a slick hard sell
.. and its relentless.

Now given that the cost if 20% of the loan repayments (but 5% to buy independently) you understand why they ram it down your throat. Add to this the low payout rates of 11% on credit card PPI (source: Money Saving Expert) you can see why its a real bonanza for the banks and insurers.

Maybe the industry has cleaned up its act but frankly this experience makes me think that they just sharpened their tactics and got smart. They make you feel you really need to buy PPI and shouldnt progress without it.

Isnt that what got them into the PPI mess in the first place..?

Crash for Cash - Panorama programme 11th July 2011


Very interesting programme on this week from the BBC Panorama team. They showed how the fraudsters in the motor insurance claims world scammed insurers out of millions each year by staging accidents.

These gangs are clever and resourceful. They rake in money for vehicle recovery / repairs / storage and then switch attention to the personal injury side of the business.

This kind of scam was first discussed on TV as far back as 1998 in a World in Action programme on ITV. At that time legal spy worked very much on the defendant (ie insurer) side of the fence and attended the Association of British Insurers HQ for a crisis meeting to discuss the strategy for dealing with these practices. What is extraordinary is that 13 years on the insurance industry is pretty much no further ahead and these gangs are still getting away with it.

The Insurance Fraud Bureau has made great headway in tackling some of the issues but generally the scammers are still winning.

The Panorama team also got stuck into whiplash claims generally saying they were a kind of "acceptable" cultural fraud  and that everyone now wants their slice. This is complete tosh ..... the majority of whiplash accident victims are very genuine. There are a minority of less convincing claimants but thats the law of averages for you.

People know their rights nowadays and have the t'internet to make legal enquiries. This boosts claim numbers considerably.

Oh and lets not forget that the insurance industry has recently been found out ..... selling on policyholders personal data to solicitors for big bucks. A practice defended by the ABI.

Interesting ..and downright hypocritical

PPI Claims: Should you go it alone?

There’s been plenty of scaremongering in the press in the past fortnight regarding the use of claims management companies for making PPI claims. We’ve already seen how the public can be taken advantage of by money hungry banks; my question is how can they now be trusted to repay what’s owed to their PPI claims customers if there are no legal officials involved? Although claims management companies do charge a fee for their services, like any professionals in their field they also have the tools to claim the maximum possible amount for those they work for. This includes financial knowledge and a thorough approach to investigating exactly what’s owed to clients in PPI compensation – many of whom might have taken out several PPI policies which they were unaware of. The likelihood of a lender drawing attention to these additional policies is slim, as it means they will be forced to pay out more in PPI compensation. Whereas this is not in the interests of a lender who has mis-sold PPI, it is in the interests of a claims management company – this is because they will only win money if you do too. 

PPI claims management companies are methodical in their approach and will challenge any offer of compensation which does not include the interest paid on a loan or overlooks a person’s borrowing history – in short, they tend to explore all angles when dealing with claims and this inevitably leads to claiming larger sums of PPI compensation for those involved.  

All this is sobering advice for those who are going without legal aid; there’s no evidence as yet that what the banks offer via the Financial Ombudsman Service is in line with what’s really owed to someone who’s been wrongly sold PPI, and plenty of evidence to suggest that if lenders can offer less, they will. Just how hard an already inundated body such as the FOS is going to work on behalf of someone making PPI claims isn’t yet clear and we don’t know what the fruits of their efforts will be on a grand scale. 

I would therefore be less worried about paying a fee to a trusted professional and more worried about attempting to go it alone and negotiate PPI compensation without legal advice. 

There is potentially thousands of pounds at stake for each victim of PPI mis-selling; why risk letting the banks win yet again?

The RTA Claims Portal: 1 Year On

Most readers will know that I was a vocal opponent of the RTA claims portal when it came into being more than 12 months ago. The portal is designed to be a simple mechanism entirely online that allowed both road accident solicitors and motor insurers to communicate via a database rather through expensive and wasteful correspondence which bogged everybody down. Effectively the plan was to turn simple road accident cases into conveyor belt processed claims.

At its inception in April 2010 it was frankly - a complete shambles. The system took at least 6 weeks to bed down. The IT didnt work, the training didnt happen, the industry wasnt prepared and it was very difficult to think of any positive things to say about the whole concept.

So 1 year into what I would call full on business workflow ...how are things now?

Well, I have to admit that this portal really isnt all that bad. Yes it has dumbed the industry down considerably, yes it has automated our world to a degree but the pro's far outweigh the con's in my opinion.

We are settling claims at the lower end much quicker - we are not having to deal with poorly trained insurer staff (because we no longer need to speak to them in most cases) and finally we are getting interim costs paid upon admission of liability which has injected cash into the business well ahead of settling the actual claim.

The IT works better and in fact has recently been upgraded.

All in all - things are pretty good in the RTA world and rumours of its demise were indeed grossly exaggerated.

The one bit of good news from the forthcoming No win No fee reforms

Part 36 Offers

Almost unnoticed in the furore caused by Ken Clarke's recent assault on No win No fee lawyers came the news that "Part 36 offers" are to be given more weight in litigated cases. Harking back to the early phase of the Woolf Reforms when insurers actually believed that P36 proposals mattered.

Clarke's proposals introduce two changes that act as enticements:

A defendant that does not beat a claimant's Part 36 offer is already liable to pay the claimant's costs on the indemnity basis and interest on those costs and damages awarded at a rate of up to 10% above base rate. 

Now though an additional costs sanction of 10% of the value of the claim will be paid by defendants who do not accept a claimant's Part 36 offer that is not beaten at trial. 

If a money offer is beaten at trial, even by a small margin, the costs sanctions under Part 36 will apply. This reverses "Carver" and ensures that the P36 mechanism remains a very useful tool in accelerating settlements.

Whilst not easily digestible by The Sun and other rags, it is nonetheless a significant part of the reform process and one that Legal Spy welcomes.

No win No fee witch hunt ... the winner loses


Ken Clarke the Lord Chancellor announced this week that the government were to implement many of the recommendations presented by the Jackson Review 2010. This blueprint document set out radical reforms which apparently are badly needed in the No win No fee litigation sector.

As a battle hardened personal injury litigator I can see why there is a need to reform. The disappointment for me is the complete failure once again for the pro personal injury lobbyists to compete with the insurance big wigs who pretty much call the shots at the Ministry of Justice. We have been trampled over and made to look like dead eyed sharks.

The main points are pretty radical.

At the moment when you pursue a personal injury claim, your solicitor will offer you a “No win No fee arrangement” which in short means they will take your case on without charging you if they lose the case. However the solicitor is entitled to a success fee in addition to base costs to reflect the risk they have taken in pursuing the case on a “no win no fee” basis. Both base costs and the success fee are paid by the defendant insurers if the case succeeds.

The claimant is also encouraged to take out an insurance policy that protects them if they proceed to court. This is known as an After the Event (ATE) policy.  The cover provided by the ATE basically pays the defence legal fees if you have a bad day in court and lose at trial. The ATE premium is also paid by the defendant insurers if the case succeeds – the premium is not recovered at all if the case fails.

The key change in the reforms reverses the principle that the loser pays. Instead, it is proposed that the claimant rather than defendants should pay lawyers success fees and cover ATE insurance costs in order to pursue their case.  Lawyers can charge a success fee against damages up to 25% of the sum awarded. Base costs can still be recovered from the insurers but the intention is to remove the current “free to claim” and “win 100% of your award” mentality that prevails in the market. To accommodate this radical move, compensation awards will be increased across the board by up to 10%. The idea being that the 10% increase ultimately cushions the blow suffered by the claimant in having to fork out the extra charges.

Once these reforms are made law, it will no longer be free to claim and successful claimants will no longer win 100% of their compensation award. Those days are gone.

So why do this..? Well the reasoning is simple. The government and the all powerful insurance lobby want to discourage claimants and lawyers from making – what they deem to be – frivolous and unnecessary claims. These are the cases that, they say, fuel the “compensation culture”.

So will this work…?   Absolutely not.

All that will happen is that lawyers will forgo the success fee in many low value cases and probably take on even more frivolous / risky claims to make up the difference. Seriously injured claimants will lose out twice over because they will be stuck paying up to 25% of much needed damages to their lawyer and then have to cover the cost of the ATE.

Pity those that are seriously injured and need to make a claim to cover much needed treatment costs and lost wages.

The industry will need to adapt and of course that’s exactly what it will do. The lost revenues will be made up in other ways and of course.... we will still as always be perceived as sharks.  

Whiplash Claim Advice ... watch out for the insurance company wolf in sheep's clothing

I am seeing more and more examples of insurance companies seeking to buy off road accident claimants with cheap nasty offers before they even get chance to seek legal advice.

The tactic is known in industry circles as third party capture. The objective of the insurer is very simple: to dispose of the claim quickly and preferably before the claimant speaks to a lawyer. The lie promoted by the insurers and supported by none other than the Association of British Insurers (ABI) is that they are putting money in the pocket of deserving claimants rather than paying out legal fees thus inflating claim costs.

This is pure bunkum! It cannot be right that insurers are able to shove money into the faces of hard up injured claimants and dangle the carrot of a quick and speedy settlement. Some insurance companies actually knock on the door of claimants with a chequebook in their hands to talk turkey.

In many instances this tactic goes badly wrong with injured people accepting settlements long before they have finished their treatment let alone recovered from their symptoms.

So watch out for this and report any abuse of the process. Our friends at APIL are only too happy to cross swords with the sanctimonious crowd at the ABI.

WARNING: Scammers could be trying to Hi Jack your law firms website and brand - A salutary tale

As a medium sized law firm in a hugely competitive field we have learned how to market ourselves on the internet extremely effectively. We are, in my not so humble opinion, ahead of the game.

Our web tentacles spread far and wide. We market on blogs, on niche websites and spend good amounts of dosh on search engine optimisation (seo: Google it, you'll be amazed how much you are missing out on!). We also use pay per click rather successfully and were very early ppc adopters starting in 2002 - how may law firms do you know who can say that..? 

Just reading that back you would think that we have every reason to be rather pleased with ourselves... you'd be right...we are.

This week however we had a rude awakening and if this can happen to sharp suited web hungry geezers like us - then it can almost certainly happen to you or your law firm.

Someone had hi-jacked our brand name and had created a website to mirror (not "scrape" but closely mirror) our own. It transpired that a Nigerian outfit had knocked up a site using our firms name in the url domain, they slapped a very poor grade copy of our logo image on there and effectively were masquerading as our firm. We received a tip off from an anonymous person who we suspect was either a disgruntled member of the scamming squad or more than likely someone who had fallen victim to a ruse backed by the site.

A little bit of research identified that the scam site contact address was the same  as the First Bank of Nigeria in London, a palatial pile - clearly bogus. The phone number routed to a voice mail and the enquiry form was broken which meant it was therefore unusable. 

Disppointingly, Google had ranked this site on page 3 for OUR brand name. Despite the site having no incoming links, not being registered in the UK and having no relevant content beyond a few rambling phrases. We had no idea how the site was being used but there can be no doubt it was doing our firm a lot of harm by being visible and purporting to be connected to our business.

Now as Ive already stated, we are no mugs when it comes to all things internet and we took less than 24 hours to get the site pulled from the web. However it did shake us a little and we were shocked by the lack of support and guidance available to firms in this situation. The Law Society and SRA were not particularly helpful Im afraid to say.

So here is a summary of the steps we took to pull the site and remove the threat to our business:

1) Firstly we checked the WHOIS of the site to determine who owned it and when it was first registered

2) We then checked the source code of the site to see if any trace of an identity had been left within the code - such as a company footprint, web design team, template ID or web link to another organisation. We found zip as it happens.

3) We searched Google/Yahoo/Bing to find out how deep the site had been indexed and whether there was any real threat to our brand name and reputation. This site was actually ranking for some of our branded terms. Not good.

4) We found out through the WHOIS that the site was hosted by a slightly dodgy looking firm in, of all places, Vietnam. This did not fill us with confidence - however we sent an email to the hosting company (there was no phone number) notifying them of the scam site and threat to our business. We politely suggested they take the site down whilst investigations continued - note: we did not make any threats, the email was forensic and well balanced. Any reasonable person would view it as such. We figured there was no point in blustering legal profanities at them - you could hardly play UK law games with a business operating from a bedroom in Hanoi.

5) We contacted Nominet who control the register for UK domain names. They were not helpful Im sorry to say. Crucially though, we took steps to escalate a complaint about the extremely apathetic response we received and we had a manager on the phone before long who assured us some action would be taken to pull the site - but not for 30 days. This is the standard time-frame they allow for site owners to respond to  any allegations. Nominets response was in the end pretty good - but we had to push and push hard to get anywhere. (You can reach their dispute team on tel: 01865 332211)

6) We spoke to the Law Society & SRA who were politely ineffective despite telling us this was a common occurrence. If it is a common occurrence - why is there no firm action plan to help law firms in this situation??

7) We could have written to the main search engines - Google in particular take scam sites seriously and would pull the site from their index if we persuaded them of the dangers. You can lodge such a request here 

8) We also phoned the Met Police who have a dept dedicated to this kind of fraud. They were not too interested and in real terms one cannot blame them. There are more serious issues out there than a spoof legal website.

9) As stated earlier, we tried calling the scam website number, sent an email etc but this was fruitless.

In the end, the most effective of these measures and perhaps the one that elicited the most surprising outcome was step 4) ... our friends in Hanoi. believe it or not they actually took the site down within 24 hours of our message. A very brief response from them simply read "phishing site taken down"...!!!

So after all our misgivings the one organisation we had the least faith in - actually delivered the best response.

How can you avoid this as a web business owner...? Truth is you cant. However I would urge all businesses to scan the web regularly for spoof sites and drill deep into say page 4 or 5 of Google to unearth possible threats. They may be out there and they may just be damaging your reputation.

I hope in relaying this tale that other businesses - whether they be law firms or not - can gain something from our experience. The world wide web is indeed wonderful ... but it can also be an untamed beast.

You live and learn...!

Employment Law Joke - Courtesy of Peter Kay

"My friend got sacked from his fairground job recently - he worked on the dodgems and really loved it.  He's suing his boss for for Funfair dismissal!!"


[The Tour That Does'nt Tour Tour 2011]

Solicitors.com

I dont often recommend legal websites - our firm owns a few and it would be just plain wrong to promote others when I dont even push our own. However when you come across a service that has probably the best domains in the business and actually looks pretty useful as well, it would be wrong not to give it a heads up:

If you are looking for solicitors online give www.solicitors.com a try. You could do worse and frankly I prefer these services to some of the Meerkat impersonators that have cropped up recently.

What will the VAT rise and the forthcoming period of austerity mean for the legal industry..? 

Tomorrow 4th Jan 2011 VAT rises to 20%. Any bills raised by your lawyer for privately funded work will be a little bit more expensive from now on.

Our firm has tried to be generous and we have processed as many bills as possible pre 4th Jan. There are some invoices that will be backdated for various reasons and the old rate may still apply. However from here on in - Law just got more expensive for every private individual in the UK.

Overall this year is going to be tight for the man on the street and that means that every professional sector will be hit hard. So whilst the VAT rise itself will not affect the legal industry, other factors certainly will:

• House prices and house sales are falling meaning less people will instruct conveyancing solicitors.

• Making a Will has never been a top priority for many people - volumes will now drop even further.

• Probate will be affected as people look for cheaper deals and there are much more affordable ways nowadays of administering a will 

• Family / Divorce lawyers will be affected as couples seek low cost methods to deal with divorce and separation.

When you add to that mix Oct 2011 and the introduction of Tesco Law and Alternative Business Structures (ABS) - this undoubtedly will be a difficult and very challenging year for the industry. When times are hard, as an employee or as a partner you need to look at your top people and management to determine whether the firm you are in actually has what it takes to survive the approaching storm.

If it doesnt and you think you deserve better - make a move now and seek a better position for yourself. Dont wait until the hurricane hits land.