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JILT 1996 (1) - Lord Woolf - Medical Negligence

ACCESS TO JUSTICE

MEDICAL NEGLIGENCE
INTRODUCTION
  1. Lord Woolf published an interim report on his Access to Justice Inquiry in June 1995. In it he puts forward a new procedural framework for civil litigation in general, of which the central feature is a new system of case management with the court rather than the parties taking the main responsibility for the progress of cases.
  2. Lord Woolf's final report is to be published in the summer of 1996. It will be accompanied by the draft of a single, simpler code of rules for High Court and county court litigation. It is intended to provide, so far as possible, a single method of commencing proceedings in both courts, and a common procedure for all cases. It is likely, however, that some separate rules will need to be retained for special procedures, and that the general rules will need to be supplemented by judicial practice directions and by procedural guides covering particular types of cases.
  3. The second stage of the Inquiry is looking at specialist jurisdictions and categories of litigation which present special problems, including medical negligence, to determine how far the general principles can apply to them and what special provision is needed. This paper outlines Lord Woolf's proposals for the reform of civil litigation in general, and considers how they might apply to medical negligence.

    PROBLEMS IN CIVIL LITIGATION GENERALLY

  4. The main problems identified in Lord Woolf's interim report are: excessive cost, which is often disproportionate to the value of a case (the disproportion being greater in smaller cases);

    excessive and unnecessary delay;

    uncertainty as to costs and timing; and

    inequality between parties.

  5. Factors contributing to excessive cost and delay include: lack of overall judicial and administrative responsibility for civil justice, resulting in low priority for civil business within the court system;

    insufficient emphasis on developing specialist experience and expertise in civil litigation among judgeand court staff;

    inadequate enforcement of rules and timetables by the courts, leaving progress of cases to parties and their advisers and giving tactical advantage to financially stronger or more experienced parties;

    uninformative pleadings which do not reveal the full facts and issues, and therefore hamper speedy progress;

    excessive discovery, often used as an oppressive weapon by stronger parties;

    excessive and inappropriate use of experts;

    over-elaborate witness statements drafted by lawyers; and

    overlisting by the courts resulting in delay on day of hearing or in adjournment;

    THE NEW SYSTEM

  6. Lord Woolf's interim report proposes a new system designed to encourage a more co-operative, less adversarial approach to civil litigation and produce earlier, fairer settlements in cases where settlement is appropriate. Lord Woolf has proposed that: a senior judge should be designated Head of Civil Justice, and there should be clear judicial and administrative responsibility for civil work at all levels;

    greater (though not exclusive) judicial specialization should be encouraged;

    the courts should be responsible for case management, with all cases allocated to one of three 'tracks' (small claims / fast track / multi-track) according to their value and complexity;

    there should be a limited procedure, tight but realistic timetables and fixed costs for cases on the fast track;

    there should be tailor-made directions and hands-on judicial case management for the heaviest cases on the multi-track, with a case management conference shortly after the filing of a defence and a pre-trial review about 8 weeks before the trial date;

    a number of measures should be taken to encourage earlier settlements, including the introduction of a plaintiff's offer to settle and more use of alternative methods of dispute resolution, including mediation, in appropriate cases.

  7. Procedural judges, who would have the main responsibility for case management, would have new or wider powers to: enter summary judgment when either side has no realistic prospect of success;

    narrow and determine issues as the case progresses;

    decide what expert and other evidence needs to be adduced;

    order split trials of liability and quantum in personal injury cases where medical prognosis is uncertain;

    impose tough sanctions, including immediate orders for costs with high interest rates, for non-compliance with rules or directions.

  8. The essential features of the fast track, for cases up to about £10,000, would be; a fixed timetable of 20-30 weeks to trial;

    limited discovery;

    no oral evidence from experts, and expert evidence limited as far as possible to a single, agreed report;

    limited oral evidence from witnesses of fact, supplemented by written submissions and evidence;

    a time limit on trials of three hours, with a strict allocation of time to each side;

    short judicial reasons for decisions, given at the end of the hearing or subsequently in writing; and

    fixed recoverable costs on each side proportionate to the amount in issue, with a fixed minimum for the smallest cases.

    CAUSES OF COST AND DELAY IN MEDICAL NEGLIGENCE LITIGATION

  9. This is an area of litigation in which human concerns combine with technical legal problems to increase cost and delay. Causation and liability are more difficult to establish in medical negligence than in other personal injury cases. Liability is often strongly contested because doctors are concerned about their professional reputations. Claimants are intensely involved and often bitter about their experience. These factors lead to: costly and protracted investigation, which exacerbates the general problem of disproportionate cost, particularly in the smaller cases;

    a lower success rate in medical negligence than in other personal injury litigation, reflected in a higher net cost to the taxpayer in legally aided cases; this includes a significant level of expenditure on cases which do not proceed beyond the initial investigation stage.

  10. Some of the major sources of cost and delay in medical negligence cases arise at the pre-litigation stage. Inadequate incident reporting and record keeping in hospitals, and mobility of staff, make it difficult to establish facts, often several years after the event.

    There is often a long delay before a claim is made, and this is accentuated by a limitation period which runs from the date of knowledge and / or the age of majority.

    Defendants cannot carry out a full investigation of every incident, and are often given little notice of a patient's firm intention to sue.

    Medical staff are traditionally reluctant to admit negligence or apologize to / negotiate with plaintiffs, for fear of damage to their professional reputation.

  11. The outcome of medical negligence cases hinges on expert evidence. This is costly and difficult to obtain because: there is a relatively small number of senior doctors who are considered competent to act as experts in medical negligence;

    doctors may be reluctant to give evidence which questions the professional judgment of colleagues;

    experts in several different specialties may be needed to cover all aspects of a case;

    opposing experts hardly ever meet, and little or no attempt is made to define and narrow the issues between them at an early stage;

  12. Other special factors in medical negligence litigation include shortage of experienced specialist medical negligence solicitors;

    lack of specialist expertise among procedural and trial judges.

    MEDICAL NEGLIGENCE IN THE NEW SYSTEM

  13. Medical negligence litigation could benefit in a number of ways from implementation of Lord Woolf's proposals. More informative pleadings should help to define the real issues at an earlier stage and speed up the progress of cases.

    Case management should encourage a less adversarial approach and enable cases to settle on appropriate terms at an earlier stage.

    Extended summary judgment may help to prevent unmeritorious cases being pursued or defended too long.

    Improved training and greater specialization should help judges to identify weak cases, narrow and determine issues and limit the scope of evidence.

    More use of split trials will limit unnecessary work on quantum in cases where liability is in issue.

    Greater emphasis on early definition of issues between experts should encourage a less adversarial approach and reduce cost and delay.

    SMALLER CASES

  14. The problems common to all medical negligence litigation are exacerbated in the smaller cases, where cost and delay are likely to be even more disproportionate to the value of the claim and the complexity of the issues. Some victims want an explanation or apology rather than financial compensation, but are forced into protracted litigation because there is no other way of resolving the issues. Is it possible to devise an alternative approach that provides satisfaction for victims within a reasonable time and at an affordable and proportionate cost.
  15. A detailed fast track procedure for general cases up to £10,000, along the lines of the proposals in Lord Woolf's interim report, is being developed by a separate working party. It is not envisaged that this will be suitable for medical negligence, but it may be possible to modify the standard fast track to meet the special problems in this area of litigation. It is likely that this would involve some shift away from the adversarial tradition, in particular through a more co-operative approach to investigation and to expert evidence, which would take time to achieve.
  16. There are several options for dealing with smaller medical negligence claims outside the court system, some of which have emerged in discussion with key players as approaches which are being developed in individual NHS trusts or areas. These approaches may be particularly suitable for claims at the lowest end of the financial range, or for those in which financial compensation is not the claimant's main objective. They include: in-house disposal by claims managers;

    independent mediation;

    an extended jurisdiction for the Health Service Ombudsman to cover claims up to, say, £10,000; and

    a separate, expert tribunal or specialist arbitration scheme.

    LIMITATIONS OF PROCEDURAL REFORM

  17. Changes to the administration and procedure of the courts will not in themselves reduce the need for extensive investigation into causation and liability, which is a major source of cost and delay in medical negligence litigation. Initially, at least, timetables may need to be relatively generous, to reflect the difficulty encountered by defendants in gathering evidence and making records available. In the longer term, a number of recent and prospective changes in the NHS should help to alleviate the problems associated with preliminary investigation. The Clinical Negligence Scheme for Trusts (CNST), introduced in July 1995, will put pressure on member NHS trusts to implement incident reporting and recording and proper arrangements for claims management. The CNST currently has 319 members, 75% of its potential membership.

    The Law Society's new protocol on obtaining medical records should standardize procedure, provide greater certainty, and reduce the burden on defendants and cost to plaintiffs.

    Professional claims managers should increasingly assist earlier identification of incidents, and facilitate settlement of smaller claims through an informal approach to dispute resolution.

    ISSUES / QUESTIONS

  18. The current system of handling medical negligence cases will need to be changed in a number of ways if this area of litigation is to benefit fully from Lord Woolf's proposed reforms. The following are among the issues to be addressed. A new ethos

    a) What steps can be taken to:

    i) - introduce a less adversarial approach to medical negligence litigation;

    ii) - reduce the length and cost of preliminary investigation; and

    iii) - identify and weed out weak cases more quickly?

    b) What do claimants really want, and how can the system be adapted to meet their needs?

    c) How can we develop a culture in which it is accepted that doctors, like others, make mistakes?

    d) Can the number of bad complaints be reduced by proper complaints procedures?

    e) How could the number of solicitors competent to handle medical negligence cases be increased?

    f) Are there ways (in addition to the Law Society 's protocol) of further simplifying or standardizing pre-litigation procedure to introduce greater certainty?

    Case management

    g) Are there any possible improvements to the administration of the court system (including the deployment of the judiciary) that would help case management to work more effectively in medical negligence cases?

    h) What form of court-controlled case management system would be most suitable for medical negligence?

    i) Is 'no realistic prospect of success' an appropriate summary disposal test for medical negligence? How can medical evidence be tested in summary disposal proceedings?

    j) Is there a need for a special practice guide for medical negligence litigation?

    k) Is the use of video or other technology likely to improve the handling of medical negligence cases?

    Expert evidence

    l) Is there any scope for the use of a single expert (whether court-appointed or agreed by the parties) in medical negligence (including experts on quantum as well as liability)?

    m) In circumstances where a single expert would not be appropriate, what other ways are there of limiting the scope and cost of expert evidence so as to define the issues between experts as early as possible?

    n) How can the number of competent medical experts be increased and how should they be monitored?

    Smaller cases / ADR

    o) Could the proposed fast track procedure be adapted to provide a quick, cost-effective means of dealing with smaller medical negligence claims? If so, what special arrangements would be needed?

    p) Is any of the out of court alternatives likely to provide a better solution than a modified fast track?

    q) Should mediation, or in-house disposal, be compulsory for claims below a minimum level (say £3,000)?

    r) What scope is there for resolving larger medical negligence claims outside the litigation process, and what benefits would this bring?

Please send any comments on this paper, by 11 March 1996, to:

Miss B M Griffith-Williams
Lord Chancellor's Department
Room 6.22
Selborne House
54 / 60 Victoria Street
London SW1E 6QW

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