When you sue the NHS, I defend it - AMA

[SilverTimpani]

I’m a solicitor who specialises in defending clinical negligence claims. Ask me anything.

Do you ever have a conscience about situations where someone has actually had a really poor standard of care or been harmed and you’re doing your absolute best to make excuses on behalf of the service/clinicians involved?

I always wonder the same about the kind of solicitors who defend the absolute lowest of the low criminals. How do they sleep at night?!

Have you ever refused to accept a case?

Do you have to a skewiff moral compass? I imagine you'd have to have one for defending criminals but not sure if it's the same for your line or work

@ZealAndArdour

Do you ever have a conscience about situations where someone has actually had a really poor standard of care or been harmed and you’re doing your absolute best to make excuses on behalf of the service/clinicians involved?

I always wonder the same about the kind of solicitors who defend the absolute lowest of the low criminals. How do they sleep at night?!

No, because that isn’t really how it works.

When a claim is made against a client, the first thing we assess is whether liability is in dispute. Often, the HCP who is being sued will inform us themselves that they made a mistake or failed to fulfil their duty of care in some way. If it’s not as clear cut as that, we get an independent expert report. Experts are bound by a duty to the court, not to us, and therefore will give a genuinely independent view.

If the report concludes that negligence has occurred, we immediately move into negotiating settlement. We don’t try and defend clear cut cases of negligence - to do so would be expensive and ultimately unlikely to be successful.

What usually becomes a sticking point is the value of the claim. I’ve seen some wildly overstated claims in my time, and even on the least contentious claim there is usually a gulf between the value proposed by the claimant and the value proposed by the defendant. It can be hard to find an acceptable middle ground.

I don’t feel guilty about negotiating settlements - if we agreed to whatever figure was sought by the claimant, no matter how inflated, it would drive up NHS insurance costs and have a chilling effect on the provision of healthcare in high risk situations. So I think there is a public good in finding a more accurate settlement figure.

Regarding criminal law, it’s not something I practice myself but I still don’t think it’s an issue of conscience.

For one thing, criminal barristers are bound by the ‘taxi’ rule. They have to take the next case in the queue that falls within their remit and from which they’re not disqualified by virtue of knowing one of the parties etc. They don’t have the option to turn down cases because they don’t like the look of the client.

It’s also an absolutely essential cornerstone of our legal system that everyone is entitled to a defence. We presume innocence until guilt is proven - it’s not for a lawyer to prejudge whether someone is ‘the lowest of the low’ and refuse to defend them. It’s essential to assume innocence and provide the best defence you can, or our legal system would fail.

@romdowa

Have you ever refused to accept a case?

Yes, but only for boring reasons like conflict of interest.

I have had to recuse myself from a case on which we were already instructed because the client wouldn’t accept our advice. It was actually not an NHS case but a cosmetic surgeon who had allegedly acted negligently in respect of a procedure on a patient. We obtained three expert reports all concluding that he had been negligent but (very unusually - I’ve only know this happen once) - the surgeon wouldn’t accept the conclusions of the reports and wanted to continue defending the claim. We couldn’t continue to act for a client who wouldn’t accept our advice, so we withdrew from acting and he found other solicitors.

@StormcloakNord

Do you have to a skewiff moral compass? I imagine you'd have to have one for defending criminals but not sure if it's the same for your line or work

Not at all - I think I have a strong moral compass, and I believe criminal solicitors do too. As I’ve said above, our legal system requires both a presumption of innocence until guilt is proven, and for every accused of a crime to be given a robust defence.

It’s always worth putting yourself in someone else’s shoes for a moment - imagine you were the person accused of a horrible crime. You’ve done nothing wrong, but you were in the wrong place at the wrong time and it looks bad. The press have already splashed your photo across the papers and are heavily implying you’re a monster. Your neighbours are turning away from you in the street.

Do you want a solicitor to decide on the basis of that picture that you must be guilty and refuse to take your case? Do you want them, rather than a jury, to be the arbiter of your fate? Or do you want them to be wholly on your side, doing their absolute best to present the strongest possible defence for you?

That’s the attitude solicitors have to take with every client they have, regardless of whether or not they appear sketchy. Partly because it’s not their job to be judge and jury, and partly because without the right to a defence, our legal system would be unfair and tyrannical.

You’d feel similarly if you were accused of negligence but hadn’t actually been negligent. You would want your solicitor to do their best by you. And if you had been negligent and accepted that money was due, you wouldn’t want your solicitor to simply agree to every inflated, trumped up cost claimed against you. You’d want it to be a fair and representative figure.

Saying that solicitors who defend negligence claims or criminal claims lack a moral compass simply because they do that work presumes that the people we defend are always in the wrong or guilty. But that simply isn’t the case - they often haven’t done anything wrong at all. And until we know otherwise, it’s our job to act on that basis.

Do you ever get the urge to roll your eyes at some claims?

And on the other side are you ever shocked/saddened by some of the cases

@WFHWF

Have you had a case where a patient has sued because a foreign body has been left in the body of a patient after an operation?

Also, are there some NHS staff that are regularly named in claims and you think, here we go again?

Yes, I have. Just one, but it was awful. That had already been recognised as a ‘never event’ so it settled very quickly.

I’ve never had a frequent flyer myself, though they probably exist.

I am very conflicted by people suing the NHS and taking money away from a overstretched system, particularly when treatment is free. But then standards for have to be mssintained.

Do you think there is a better way of handling , maybe via insurance for example?

@StormcloakNord

Do you have to a skewiff moral compass? I imagine you'd have to have one for defending criminals but not sure if it's the same for your line or work

Really?

You don’t believe in the right to a fair trial, including the right to legal representation? If charged with a crime you don’t think anyone should represent you?

What's the strangest claim you've ever been involved in?

@Ginfilledcats

Do you ever get the urge to roll your eyes at some claims?

And on the other side are you ever shocked/saddened by some of the cases

Yes to both. I’ve never rolled my eyes at the subject of a claim, but sometimes the costs are over-inflated beyond belief.

I have had some really awful ones, for instance one lady was left infertile as a result of a mistake in the course of her first birth. Healthcare can be a tricky issue because often financial recompense doesn’t actually make good the wrongdoing; no amount of money would really make up for that lady’s infertility, for example.

I think it’s worth saying that even when I’ve defended HCPs who have been negligent, in almost all cases I’ve found them to be dedicated, committed and compassionate people who, for whatever reason, got something wrong that day. Everyone makes mistakes sometimes, even when conscientious and hard working. It’s just tough that when it comes to healthcare, the consequences can be so devastating. When that’s been the case, you can see the very distressing effect it has on the HCP in question. Of course that’s nothing to the distress of the patient, but I wouldn’t want to give the impression that the HCP’s are heartless or just don’t care when these things happen.

No questions but definitely watching with interest - I work for a large organisation which gets lots of claims and I sometimes work closely with our legal counsel; their jobs fascinate me.

From what we read in the media it seems almost impossible to get a HCP struck
Off and permanently removed from their jobs? They seem to be suspended on full pay for years and then return like nothing has happened despite the devastating consequences - is this really the case?

I could have tried to sue for botched surgery causing more complications for my already fragile body and ended up paying privately for a 3rd surgery to rectify. I have no intention of suing btw.

I get why some people claim but annoyed at others. Retaining you and other solicitors is such a costly and wasteful resource, which could be better spent on training and care.

Do you think if more money were put into the nhs, your services would be less in need?

@twinningatlife

From what we read in the media it seems almost impossible to get a HCP struck Off and permanently removed from their jobs? They seem to be suspended on full pay for years and then return like nothing has happened despite the devastating consequences - is this really the case?

In all honesty I’m not sure - my work is done when the claim is resolved, I’m not sure what the policy is on things like this!

@Mummyoflittledragon

I could have tried to sue for botched surgery causing more complications for my already fragile body and ended up paying privately for a 3rd surgery to rectify. I have no intention of suing btw.

I get why some people claim but annoyed at others. Retaining you and other solicitors is such a costly and wasteful resource, which could be better spent on training and care.

Do you think if more money were put into the nhs, your services would be less in need?

I’m so sorry you had a bad experience.

I’m not sure it’s as clear cut as that; some of the mistakes I’ve seen are definitely either caused or influenced by issues which could be resolved by funding, such as understaffing / exhaustion / inadequate supervision etc. But many aren’t. Many are simply caused by the fact that humans are fallible, and medicine is difficult and complicated.

It’s also often the case that HCPs are sued because of a (perceived or genuine) failure to gain informed consent. So for example, an operation will be performed and a negative consequence occurs. The operation was not performed negligently, and the consequence is a known possibility with that type of surgery, but the patient claims that they weren’t fully informed of this consequence and wouldn’t have had the procedure if they had known about it. In such cases, the HCP will be found negligent even though the operation was performed competently. Usually there is a signed consent form listing the potential consequences of a procedure, but if it’s just a box that has been ticked to say it was discussed it’s unlikely to be sufficient evidence of informed consent.

That could probably be resolved by more funding - if HCP’s actually had time to conduct a proper interview with the patient and discuss the procedure in depth, and time to write up comprehensive notes afterwards it would both allow informed consent to be properly obtained, and would evidence that.

I had surgery myself recently and the consent process was really perfunctory. I think it all contributes to patients not feeling listened to or given the opportunity to really ask questions. Then if something does go wrong - even something which is a known risk they’re considered to have accepted - they understandably feel aggrieved and let down.

Do you get frustrated when like everything in life nothing is 100%. Things do go wrong and TBF every procedure I've had under NHS they are VERY clear there's a risk.

When they are the unfortunate small % where things go wrong they won't accept thats a risk they took .

Thanks for replying to me. I do agree with what you’re saying about the consent process. There was a thread about an LLETZ The other day and I wasn’t the only woman including the op, who failed to be informed of the increased risk of miscarriage prior to the procedure. I definitely wasn’t told of adverse outcome of my first major surgery, which resulted in a second then third. This is a known issue. But hey, NICE guidelines…

I spoke to the surgeon I paid privately asking if I should write to the previous surgeon. He told me the previous surgeon hadn’t stitched me up properly and he’d already spoken to him, which I took to mean given him a bollocking.

@rwalker

Do you get frustrated when like everything in life nothing is 100%. Things do go wrong and TBF every procedure I've had under NHS they are VERY clear there's a risk.

When they are the unfortunate small % where things go wrong they won't accept thats a risk they took .

I think it can be a tricky area. Often the process of gaining consent simply means reeling through a list of possible consequences and asking if the patient wants to proceed. If the procedure has been recommended to the patient they’re likely to simply agree, but that doesn’t mean they actually have a good grasp of the actual risks. Ideally, the process would be a detailed conversation in which the actual likelihood of the consequences was discussed, an explanation of why the procedure is still recommended, and an opportunity for the patient to ask questions but there is rarely time for that.

You do definitely see some claimants who are trying it on a bit and claiming not to have given consent when they did actually have a good discussion in advance. But often it’s actually someone who has just been really unlucky and ended up in the 1% who experience a particular consequence, and who hadn’t really understood in advance what that might mean.

The area which I think is most difficult is the question of whether a patient would have proceeded if they had known the risks. Claimants will always say they wouldn’t have proceeded if they’d known they might end up experiencing XYZ, but I often suspect that isn’t true. If you knew you had a 1% chance of a terrible outcome from a procedure that would otherwise ease pain or suffering, most would take the 99% chance that the procedure would make them better off rather than worse off. It’s easy to look back and say you would do things differently, but I doubt it’s always the case.

@Mummyoflittledragon

Thanks for replying to me. I do agree with what you’re saying about the consent process. There was a thread about an LLETZ The other day and I wasn’t the only woman including the op, who failed to be informed of the increased risk of miscarriage prior to the procedure. I definitely wasn’t told of adverse outcome of my first major surgery, which resulted in a second then third. This is a known issue. But hey, NICE guidelines…

I spoke to the surgeon I paid privately asking if I should write to the previous surgeon. He told me the previous surgeon hadn’t stitched me up properly and he’d already spoken to him, which I took to mean given him a bollocking.

That’s quite a common one I’ve been hearing of recently. I hope there’s going to be a change in procedure so that a better explanation of the risks is given in advance.

How can you sleep at night?

My DH had absolutely appaling care which was admitted by senior doctors in a meeting to debrief. He nearly died as a result and could potentially still loose a limb. Our whole family suffered the most unimaginable trauma throughout the whole period. We suffered extreme financial hardship throughout culminating in DH loosing his job and we recieved NOTHING, NADA, ZILCH.

Crazysheep I'm sorry for your experience. OP has already said she doesn't defend clear cases of negligence.

@Crazysheep

How can you sleep at night?

My DH had absolutely appaling care which was admitted by senior doctors in a meeting to debrief. He nearly died as a result and could potentially still loose a limb. Our whole family suffered the most unimaginable trauma throughout the whole period. We suffered extreme financial hardship throughout culminating in DH loosing his job and we recieved NOTHING, NADA, ZILCH.

I’m so sorry for your horrible experience, I can only imagine how traumatising that was and continues to be.

I would be asking how your solicitors sleep, really. It’s astonishing that with negligence having been admitted by the doctors involved, you weren’t successful in your claim. It doesn’t sound to me like your solicitors did their job effectively if they weren’t able to secure you any compensation in a clear cut case.