The important role played by the Care Quality Commission (CQC) in addressing systemic failings in health care has been highlighted in this recent tragic case brought against Nottingham University Hospitals NHS Trust. 

Wynter Andrews died 23 minutes after being born by emergency caesarean section on 15 September 2019 at Queen’s Medical Centre. An investigation by the CQC found multiple failings both in the care of Wynter’s mother, Sarah Andrews and to Wynter with staff failing to follow the Trust’s own guidelines.  

On 27 January 2023, Nottingham University Hospitals NHS Trust was fined £800,000 by the Care Quality Commission after admitting it failed to provide safe care and treatment for a mother and her baby.  

Who are the CQC?

The CQC was established in 2009 to regulate and inspect health and social care services in England. Since April 2015, it has had the power to prosecute health and social care providers in England if the provider fails to give safe and high quality which is intentional or avoidable. Fines, decided by the Court, can be unlimited.    

Nottingham University Hospitals NHS Trust is the 3rd NHS Trust to be prosecuted by the CQC for failings in maternity and midwifery care, receiving the largest fine to date.  

Have you been injured through clinical negligence?

As clinical negligence lawyers, we typically act on behalf of individual clients who have been injured through clinical negligence. The powers of the CQC to bring criminal prosecutions at organisation level, however, is an important and complementary way to try to address failings in the care provided and provide accountability at a Trust level. Patient safety must be prioritised to avoid further tragedies in the future. 

Our team here are always willing to talk with anyone who thinks that they or their baby, might have been harmed by negligent care given during pregnancy or birth in any instance in the UK. Contact our team of specialist solicitors to discuss your case of medical negligence and we will do everything to help.

Read our other clinical negligence articles:

£39M clinical negligence claim after hospital meningitis error

Government proposes fixed costs for clinical negligence claims

In late January, the Department of Health published a proposal to limit fees charged by lawyers who represent patients for medical negligence. The suggested cap of £25,000 will apply to fixed recoverable costs.

Speaking on behalf of the government, Health Minister Maria Caulfield highlighted the disproportionate rise in fees over recent years. According to an independent review that advises the Civil Justice Council, legal bills for clinical negligence claims have risen, but compensation payments have decreased.

Ministers want costs to be more proportionate than currently. They describe the proposed payment system as fair remuneration for administering claims and representing patients.

Interested parties can voice their opinion(s) until 24th April 2022. Sir Rupert Jackson, a retired justice, is head of the review. Years ago, as Lord Justice of Appeal, he examined costs and recommended changes to legal aid for general civil litigation.

Wide payments gap

During the financial year to April 2021, patients’ legal costs in negligence cases were twice as much as compensation paid. Claimants received an average of £11,198. However, the average bill presented by their lawyers was almost double that, some £22,124.

In other areas of personal injury law, fixed recoverable costs are already commonplace. Speaking in Parliament, Mrs Caulfield – once a nursing sister – suggested the scheme would speed up processing and simplify access to legal support in genuine cases. She also admitted that the NHS could save £454 million over ten years.

The plans facilitate the early exchange of evidence: solicitors on both sides will be eligible for efficiency incentives but liable to sanctions if their performance falls short. In particular, the new scheme regime encourages quick agreements on the causes, liability and amount due, or quantum.

Two-track system

Legalities would follow either a standard or a light track depending on the complexity of each case. Two meetings would take place between the parties involved, under the guidance of a neutral barrister. The aim would be to settle outside court wherever possible without costly full hearings.

Claims have been taking progressively longer to settle. Under the new scheme, it should take no longer than forty-four weeks to progress from the service of an initial claim letter to the mandatory neutral evaluation stage.

The plans outline using template letters and model expert reports in the initial presentation of evidence. Next, the defendant, i.e. healthcare provider, must acknowledge receipt of the claim within three weeks. Then, within six months, they would have to admit liability and suggest a settlement – or notify their intention to contest the claim. Finally, patients or their legal representatives would have two weeks to confirm receipt and six weeks to respond fully to the defendant’s reply.

Patients’ legal costs are usually awarded against the defendant if found negligent. Under the standard track, the cap will be £6,000 plus 20 per cent of the amount awarded in damages. The light track limits fees to £1,500 plus 10 per cent of the award.

In both cases, the damage payment receivable by successful litigants remains intact. Most legal action is under a no-win-no-fee arrangement.

Cases involving three or more expert witnesses or multiple defendants will not be subject to the above limits. Exceptions also apply to stillbirths, neonatal deaths and when the defendant highlights the restriction as a potential issue, given the nature of the alleged mistreatment.

Mixed reaction

Predictably, lawyers’ groups recorded their dismay at the announcement. Concerns were that the plans could stop victims of medical negligence from receiving fair compensation.

Lawyers questioned why the government had not dealt more robustly with unnecessary and problematic delays in responding to claims. Handling claims more efficiently would decrease costs. Furthermore, while the streamlined process limits the number of experts using model reports, there is no limit to the fees expert witnesses could charge.

The Association of Personal Injury Lawyers depicted a significant hurdle for patients to negotiate. Its spokesperson, Suzanne Trask, accused the government of failing to address patient safety issues and doing nothing to address the financial cost and human misery suffered by victims of medical mistreatment. She emphasised that negligence settlements were only a tiny proportion of the NHS budget.

In contrast, one defence group considered that the proposals did not go far enough. It urged a rapid rollout and extra measures to minimise the adversarial face of litigation.

Ministers countered that the proposals would not affect access to justice for injured patients.

Stone Rowe Brewer LLP provides high-quality legal services for individuals and businesses. Our private client lawyers are practical, proactive and friendly. If you want to learn more about the video-witnessed wills legislation extension or have any general queries, please call us on 020 8891 6141. 

The government’s online portal, ‘Official Injury Claim‘ (OIC) went live at the end of May. The portal covers low-value injury claims caused by road traffic accidents on or after 31st May 2021, where compensation for injuries is under £5000.

Anyone can use the OIC without legal advice. However, the system is challenging to navigate with a 64-page user guide and many more pages of legal rules; if it’s concluded that you have suffered a whiplash injury lasting say 6 months, you would be set to receive £495.

In addition, the system is ambiguous; if you have suffered another type of injury alongside whiplash, lasting for 6 months, the new scheme doesn’t provide information about deciding on the number of damages in that situation. The government decided to leave this problem to the courts. Whilst a working party has been set up to look into what cases to take forward, it will take months for test cases to progress through the court system.

Is the portal working?

Whilst the number of RTA claims filed has fallen since the portal’s introduction, there are fears that many unrepresented people have not materialised.

The Ministry of Justice recently published its quarterly figures for the three months since launching the Official Injury Claim at the end of May: 41,387 or 45,718 claims were from individuals with legal representation.

David Parkin, the deputy director for civil justice and law at the MoJ, speaking at the Motor Accident Solicitors Society conference at the end of October, said there used to be thousands of whiplash claims. However, with ongoing covid related issues and fewer motorists, direct comparison is particularly hard.

Even though litigants in person are the portal’s target audience, and individuals can’t make claims under £5000, injured individuals appear content to instruct a lawyer to represent them through the process.

Unrepresented individuals brought just 4,331 claims, whilst claims made through law firms amounted to 30,658 claims and 10,622 through a different business structure.

Before the portal’s introduction, some feared insurers would be more inclined to deny liability if claimants were unrepresented. While the low number of LiPs makes it challenging to answer this, compensators admitted in part of 21,680 claimants during the quarter, of which 2,314 involved unrepresented claimants and 19,366 represented claims; just 4% of the 2,447 cases denied liability in full, involved litigants in person.

Parkin said: ‘Transparency and scrutiny are absolutely vital in this online claims system. Our perception is that the system launch and the first three months have been relatively smooth for a government-associated IT system. It is not without teething problems but it seems to be working relatively well.’

The issue remains surrounding compensation for injuries that don’t fall within the criteria for the new tariff system for whiplash; just 33% of claims were tariff-only, with 61% representing a mixture of multiple injury claims.

David Bott, the owner of north-west claimant firm Bott & Co, also spoke at the MASS conference. He said: ‘Up until the Court of Appeal says what damages are there is going to be a range of different behaviours. All the way through the process we cannot say to our clients what the value of the claim actually is – both sides are in this awkward position where nobody knows that value of a claim.’

Speaking at the annual MASS conference, new chair Sue Brown said: ‘It is unclear at this point whether [the low self-representing figures] are because claimants are deciding not to pursue claims, or whether it is because they are unable to pursue their claims without representation, unable to find the OIC or sufficient sources of information or advice, or for some other reason.

‘It is early days but OIC seems to be working reasonably well for professional users, although there are real problems with A2A for both claimant representatives and insurers which need to be resolved. The system will be fit for purpose only when it works for everybody.’

If you want to find out whether your claim can go through the OIC, contact us on 020 8891 6141 or email us here.

At Stone Rowe Brewer LLP our reputation is based on continually exceeding our customer’s expectations and delivering results in a straightforward, honest and open manner. We are proud to be an accredited practise of the professional body that oversees this area of the law (APIL-Association of Personal Injury Lawyers).

It goes without saying that the NHS is under immense pressure due to the COVID19 virus and in the last few weeks, we as a nation have seen the government take drastic action by confining us to our homes in a “lockdown” status. This is in an attempt to help alleviate the pressures on the NHS, prevent the daily rising death toll and further prevent the spread of COVID19.

The urgent bill passed by parliament in March 2020 contains a provision stating that any COVID19 cases will be exempt from any negligence lawsuit. But does this apply to treatment and care provided in and around COVID19?
In short, the answer is no.

Despite the pressures on the NHS at the present time, they still owe a duty of care to many patients that are unaffected by COVID19 but perhaps are affected by another medical issue. Urgent referrals and procedures are meant to continue where possible. However, with the daily COVID19 pressures, these services are likely to be affected, which can and will cause a delay in treatment. The impact of such a delay, regardless of a global pandemic, can be damning for an individual and lead to devastating consequences. It is in these circumstances that a claim could be brought against the NHS.

Is it likely medical experts will support negligence cases that have occurred during these times? It is too early to say at this stage. However, each medical expert is to provide their opinion based on the law of negligence i.e. what would a competent body of medical practitioners have done?

If you would like to discuss any element of the above, or any other clinical negligence issue, please contact our clinical negligence experts.

Clare Gooch

I was interested to read the headline on BBC News yesterday that the NHS in England faces a payout of £4.3bn for Clinical Negligence compensation claims. Putting aside the veracity of the numbers, as a practising Clinical Negligence lawyer, I wanted to reflect on the secondary angle of the story; that is, that behind every such claim, real lives have been drastically altered in each and every one of these cases.

Clients who have experienced life-changing injuries as a result of medical errors want, above and beyond everything, answers to what went wrong. However, it seems that seeking answers or clarity from Hospital Trusts, consultants, nurses and/or staff can prove to be difficult with no one wanting to take responsibility for their actions, or even at the very least, offer an apology for the events that have taken place. Compensation is an inevitable consequence of pursuing a claim BUT it is by no means the driving motivation for the majority of clients.

The tragic case of Hayden Nguyen, reported by the BBC, strongly emphasises my point: “In the face of official silence and in a bid to get answers they took legal action”.

I have seen this repeated many times in my practice and believe it to be very typical of authorities and medical institutions seeking to, at best, prevent clarity and in the worst cases obfuscate or hide. Whilst this is understandable as nobody wants to highlight or emphasise their mistakes/errors, it serves to exacerbate a difficult situation.

It is of course understandable that concerns are raised when contributions from Hospitals into the Clinical Negligence Scheme for Trusts are rapidly increasing. However, it is my strong contention that the increased level in claims would be reduced most significantly by a dramatic increase in transparency from the Hospitals when things go wrong. Such an improvement will undoubtedly reduce the number of people who seek legal redress purely to understand what went wrong in the case of their loved one!

Clare Gooch

It will come as no surprise that the NHS plays a paramount part in everyone’s life with many of us requiring hospital and/or GP input at various times throughout the duration of our lives. It goes without saying that many of us are indebted to the treatment and care that is provided to us by the NHS and we are lucky to have such an institution in place.

However, unfortunately there are occasions where the treatment afforded to individuals result in adverse consequences. This can and often leads to an investigation for Clinical Negligence. We have to be mindful that whilst on the surface it may appear negligent, not all adverse consequences are resultant of negligent care and/or treatment.

The recently reported story of Amy Allan demonstrates this point.

Amy was born with a genetic condition known as Noonan Syndrome which caused a number of heart problems throughout her life. Due to the development of Scoliosis, it was clear she needed surgery to reduce her pain and prevent it getting worse. The surgery, which took place at Great Ormond Street Hospital, was initially deemed to have gone well, but problems soon began to develop and tragically Amy died following the surgery on her spine.

At an inquest, the Coroner heard that the decision to intubate Amy so soon after her procedure was below standard and that there were signs to suggest that she should not have been extubated and not without the advice of a Consultant as had happened.

It wasn’t until nearly two and half hours later that the ECMO team (Extra Corporeal Membrane Oxygenation) were contacted to determine the way forward for Amy. They had no idea that Amy was even at the Hospital, let alone having had such a significant procedure.

In his narrative verdict the Coroner ruled out negligent care but stated there was a lack of awareness regarding her case.

Clare Gooch of Stone Rowe Brewer LLP commented “when investigating a claim for clinical negligence, which may outwardly appear to be straightforward, we have to consider all circumstances within the prevailing legal framework. As described in the devastating case of Amy, this can be challenging for the families and clients involved as the legal threshold where negligence is proven is high and reliant on appropriate supportive evidence”.  Clare Gooch is a Partner at SRB with specific expertise in Clinical Negligence.