When you sue the NHS, I defend it - AMA

[SilverTimpani]

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

This thread is so interesting OP. It's scary how easily mistakes can be made by generally very hard working and conscientious staff (the majority of which turn out fine but when bad things do happen its just awful all round).

@Window1

Do you find that a lot of claimants exaggerate the impact of what happened and if so, does this make you have a pessimist view of the claims you receive?

It’s hard to tell - pain and suffering are very subjective, so what may be a minor ailment for one person could be serious for another. I tend to approach claims on the basis that claimants are being honest about their experiences and see if they give us cause to doubt that.

Occasionally I have come across a claimant who completely lacks credibility - for instance, claiming debilitating pain but Facebook shows them out mountaineering at the relevant time. It’s very rare though - I think people usually only go to the expense and stress and hassle of litigation when they have a genuine grievance.

From a tactical perspective, it doesn’t usually look good to a judge or a jury to challenge the credibility of a claimant. It can look heartless and desperate.

More common is people exaggerating the financial costs of an injury. I’ve seen claims for future earnings which bear no resemblance to the claimants current earnings or career trajectory, for instance. But I think it’s usually a tactical decision from the claimant’s solicitor to seek the maximum possible amount in the knowledge that it will be whittled down in negotiations or court.

@CarryOnNurse20

This thread is so interesting OP. It's scary how easily mistakes can be made by generally very hard working and conscientious staff (the majority of which turn out fine but when bad things do happen its just awful all round).

Absolutely. I generally feel for everyone in these situations - it’s awful for the person left injured or unwell, and right that they are recompensed. But it’s often awful for the HCP as well; they usually feel great guilt and upset for what is usually a very human and often understandable error.

@TheCanyon

I’ve seen many claims relating to vaginal mesh used to treat bladder issues. There are so many of these claims that most have been put on hold while a handful make their way through the courts so they can be used as test cases for the rest

My sil is a medical barrister carrying out group cases exactly like this. It's both horrendous and fascinating.

Absolutely. It’s a tough one because some women have clearly been left with horrendous issues as a result of the mesh, but for others it makes a life changing and positive difference. It must be so difficult for an HCP to decide when it’s appropriate to recommend it under those circumstances.

Do you think there’s likely to be a flood of claims around puberty blockers / cross sex hormones / gender reassignment surgery at some point, OP? (I’ll understand perfectly if you’d rather not get into that though!)

@EmpressWitchDoesntBurn

Do you think there’s likely to be a flood of claims around puberty blockers / cross sex hormones / gender reassignment surgery at some point, OP? (I’ll understand perfectly if you’d rather not get into that though!)

We can leave aside the morality of the issue and just look at the legal side!

If an HCP has obtained informed consent and fulfilled their duty of care to the patient, they’re unlikely to be found to have been negligence even if the patient ultimately chooses to detransition. If the patient is under 18, there are particularly stringent requirements around consent. But children who are ‘Gilick competent’ (i.e. emotionally and intellectually developed enough to give informed consent) are capable of consenting to medical treatment, and if this is what has occurred an HCP won’t be considered negligent if the child subsequently regrets the procedure.

Ok, thanks.

This is such an interesting topic!
Do you ever settle before legal proceedings are issued specifically to avoid publicity?
Are there any of the big law firms you find particularly skilled at getting settlements for their clients?

@TheStarMachine

This is such an interesting topic! Do you ever settle before legal proceedings are issued specifically to avoid publicity? Are there any of the big law firms you find particularly skilled at getting settlements for their clients?

We often settle before proceedings are issued, but I personally haven’t ever had a situation where publicity is that much of a concern. I’ve only ever had situations where a settlement has been reached and an NDA sought as part of that.

I deal with lots of different firms but I would say the firm that consistently had a high level of competence and reliability is Irwin Mitchell. Clinical negligence claims are their bread and butter and it shows.

After a claim has been settled, what is the process around corrective action in an effort to prevent the same thing from happening again?

@Window1

After a claim has been settled, what is the process around corrective action in an effort to prevent the same thing from happening again?

There is no process for this relating to the court action, but the NHS has it’s own internal procedures for reviewing / responding to an incident of negligence.

I have been a HCP “defended” in court by someone like you OP. A baby I delivered was later diagnosed with something that could have been caused by negligence. After a number of years the parents issued a claim against the trust and the incidents they claimed on were the care given by me, and the care given by another midwife earlier on on her pregnancy.

It was horrendous. When the claim document landed in my inbox I was so demotivated and upset. The things they were saying were, i thought, unreasonable and untrue. I felt awful for the parents and the child and understood why they would try to claim but to see in black and white someone accusing you of negligence is so hurtful.

The process went on for a year and all all points my wife reassured me that we would never go to trial and it would be settled (she’s a lawyer). I was waiting for a settlement on the court steps tbh but it didn’t happen and I was cross examined for two hours by a QC in the high court.

After I gave my evidence they dropped the part of the claim relating to me. They continued with the part of the claim relating to the other HCP and the judge ruled that the Trust did not have a case to answer and ultimately they did not receive any compensation.

I was really supported by the solicitor throughout.

The other HCP involved had moved countries and was not involved with the proceedings at all. I’ve promised myself I won’t put myself through it again and I will decline to be involved. And probably have to just leave my job, which at that point would be fine tbh! Do you have HCPs who just refuse to be involved at all.

I don’t blame anyone for claiming as that’s the way the system is. But it was one of the worst experiences of my career. And I practice very differently now, and not for the better.

Do you deal with claims from
Employees and have you started to see claims related to COVID contracted at work? If not, are you expecting them?

I lost a child due to birth injury. The NHS didn't defend the claim. In fact they admitted fault. I received a pretty small amount of compensation given the fact that I will grieve for the rest of my life. I know it reflects what I lost financially plus the statutory amount but do you often think that parents in this situation should receive more?

Do you think the system of compensation could be improved? In particular I’m thinking of the cases of children with severe disabilities from birth. If the disability is a result of negligence, they get compensation. If it’s just bad luck and nobody’s fault, they don’t, if I’m understanding correctly. Do you think this will ever change?
Sorry if I’m going off topic a bit but I think it’s an interesting question.

@SilverTimpani

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

I'm a Claimant solicitor in CN. I would never do this thread. What do you hope to gain from it.

It is self aggrandising and unprofessional

I was surprised when going through maternity services in thr NHS how little warning there is about the dangers of vaginal birth. I very much felt like the risks were massively downplayed. I wondered whether this comes up in injury claims against the NHS when things go wrong. Do you feel that women should be better informed as to the risks? What is your feeling on maternal request c section? I guess just your thoughts on this would be interesting? Can women left incontinent following birth claim?

Do you really feel that expert witnesses are truly impartial even when jointly commissioned by both parties? I don’t. I have seen too many instances where their reports have been highly prejudiced.

This is fascinating, thank you

I am trying to Sue the nhs please could you please private message me your number ? Thank you so much

Hi there,

I know this is an old thread but I’m just about to start this process. I have a deformity that was recognised and I presented the evidence to various surgeons who failed to make the link to a secondary issue which I’d developed as result of deformity. I was out on off label prescription and taken off the path and put into chronic pain path. One surgeon prescribed ‘acceptance’. He had diagnosed me with crytpogenic pain when the pains root cause was coming from my deformity. I spent a lot of money in 5 years not working and managing my pain- physio etc. I finally got a surgeon to listen and after 6 operations I can function and work and no pain.

I approached one of the nationals and they turned me down - they hinted that it was not because they didn’t think I’d lose the case but a profitability hurdle.

My questions are:

1. Should I go to a smaller firm with a smaller profitability hurdle?
2. What sort of information do the defence gather? Particularly a Do they look at assets and liabilities? Whether you have claimed benefits? Income during the period you weren’t diagnosed properley?

thanks 🙏

OP I have found this really interesting. I am not a solicitor, I’m an accountant who deals with complaints against the firm. I agree that people underestimate how long it takes to resolve a complaint. Tomorrow I will be calling someone to tell them we will be settling their complaint for about £18k, it’s taken over a year. Sometimes it is much quicker.

Interesting to read this from the other side. Having been through a medical negligence case - and still ongoing 12 years and counting. Do solicitors deliberately drag their feet (hoping the claimant before settlement will die - me being very cynical here)? Seems to be our defence asked for extensions at every single stage. How many active cases do you have at any one time?

Hi . I don’t know if you still replying but the thing is that I miscarried a baby last year at 5 months pregnant . And midwife discharged my baby girl with another family that was planing to take their baby boy to funeral service . But because of midwife mistake they took my daughter. It was classed as serious incident by the hospital and they did an investigation themselves. Do you think I have got a chance for a claim for emotional distress and complaint?

When a claimant submits a claim can the defence see a claimants assets, tax affairs or benefits awarded eg UC, Housing benefit and PIP?