Whiplash claim assault

This week will see a scathing assault on the whiplash claim industry as more and more insurers are seeking to clamp down on the so called compensation culture.

Insurers are developing ways to combat the surge in claims by reverting to superior diagnostic techniques that rule out possible time wasters.

More to follow later in the week as the announcements hit the press.

Legal Aid bill defeated in the Lords

Good news for personal injury lawyers is thin on the ground right now but this week saw a glimmer of hope for an industry that at times feels literally as though it is under siege.

The Justice Secretary Kenneth Clarke has suffered a setback in his efforts to cut £350m off the legal aid budget as his controversial reforms were defeated in the House of Lords.

Peers voted in favour of amendments put forward by shadow attorney general Baroness Scotland which will provide protection for victims of domestic violence. The government had wanted to place a 12-month time limit on domestic violence evidence presented in qualifying for legal aid, but the amendment states there will be no time limit. The amendment will also clearly state what forms of evidence may be presented when deciding whether a victim should be eligible for legal aid.

The setbacks for the government came at the beginning of the report stage of the Legal Aid, Sentencing and Punishment of Offenders Bill in the Lords. Baroness Scotland said that Clarke’s proposals, if accepted, would have turned the clock back by a decade and would place victims of domestic violence at an “unacceptable risk”.

Peers also voted to state in the legislation that people ought to have access to legal services “within the resources made available” while they also voted against protecting the director of legal aid casework from ministerial interference.

The Ministry of Justice has already announced concessions in relation to possible medical negligence claims and stated last week that children who suffer brain damage at birth will still be entitled to legal aid. The ministry said: “A safety net will continue to exist for other more serious and complex clinical negligence cases where there is a human rights issue.”

A victory for common sense in my opinion. If legal aid was removed completely for clinical negligence actions, many seriously injured victims (including children and the elderly) would have no access to justice should the worst happen.

http://www.dailymail.co.uk/news/article-2110773/Lords-block-bid-slash-legal-aid-budget-setback-Clarke-s-plans.html

The PIP scandal and the role of the MHRA

A barrister friend of mine recently put together a paper which discussed the PIP implant debacle which has begun to unfold into one of the great medical scandals to hit the UK in recent times. Cosmetic surgery negligence can be hard to prove in many cases but the facts surrounding the PIP story are truly staggering.

My friend wrote:

The latest scandal to hit the mammoplasty industry relates to  breast implants produced by Poly Implant Prostheses (PIP).   In 2010 France banned the implants produced by PIP due to the belief that there was an increased chance of the implants rupturing and leading to complications.  In fact, it  was found that the company had been using industrial grade silicone, normally used for fitting mattresses and computer parts, instead of medical grade silicone; the usage of this cheaper silicone saved the company approximately £840m per year. Worryingly, it is estimated that over 40,000 women in the UK have had breast implants produced by PIP since 2001.

The legal industry has been lobbying the government for many years via the Medicines and Healthcare products Regulatory Agency ("MHRA") warning them to wake up to the risks involved with breast implants and the manufacturing process. As far back as 2003 law firms have been raising concerns about the failure rate of some of the implant prostheses but the MHRA / NHS simply took no notice.

Now that this scandal has been the subject of a media frenzy (righly so) the government have kicked into action. However it is far too late for many women who continue to face an uncertain future. There are moves afoot to commence group action litigation against the MHRA and the government with the primary argument being that they did too little too late whilst allegedly being aware of the true facts for a considerable period of time.

This story will run for some time yet but for the 40,000 unlucky PIP recipients, one can only hope the government brings the uncertainty and misery to an end any time soon.

PM attacks No win No fee lawyers


Our dear old Prime Minister this week decided to have a go at us No win No fee folk by promising to cut legal costs on all personal injury claims below £25,000 in value. 


The plan broadly is to bump all non road accident related claims into a portal or computerised system which will mirror the current RTA system. Costs on RTA claims have been cut back dramatically but so unfortunately has the expertise and the skill applied to the job.


Most decent RTA lawyers have long since jumped ship after the margins got squeezed and ultimately as you automate a process to reduce costs, you de-skill at the expense of the client (customer). Dumb down an process and you end up with only dumb people involved.


There is life in the old PI dog yet but No win no fee work is definitely not what it used to be and big changes are on the way.

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.