Weight loss surgery goes wrong in court
Posted By : Bill On 09/10/2018 15:05:59

Here is a vivid warning from Mrs Justice Yip about the need for analysing carefully all the allegations in a clinical negligence claim – and it applies to all personal injury claims.

“The overwhelming impression I had was that proper consideration had not been given on the Claimant’s side as to how the consent allegations could be maintained on the evidence (taken at its highest) within the correct legal framework. This part of the case was not just weak; it was not properly arguable….. Looked at overall, it is clear that the Claimant was the undisputed “winner” in this litigation. However, in assessing “who has been responsible for the fact that costs have been incurred which should not have been”, the costs associated with the consent issue call for particular consideration.”.

Although that might look like a good win for the Defendant, the judge made it quite clear that the NHS Resolution Service could and should have made an offer to settle which protected it from a costs order; it did offer, but too low.

So this is yet another case, which never gets into the papers, where the NHS pays out unnecessary costs, thus no doubt reducing the money available for healthcare.

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More medical negligence causing brain injury and cerebral palsy
Posted By : Bill On 21/09/2018 08:30:04

This week I've finalised a claim for almost £20 million for a girl with cerebral palsy caused by negligent management of her birth. The following day I read in the paper that “The Care Quality Commission has written to bosses at Shrewsbury and Telford Trust to warn that it was not properly assessing high-risk pregnant women or following best practice guidelines, including providing appropriate levels of consultant input. Midwives were not properly supervised when carrying out scans to monitor a baby’s heart rate, the commission said. Incorrect interpretation of such scans was among the most common causes of injury to babies during birth.”.

I see many cases across the country where the scans are not interpreted properly, leading to catastrophic injury.

At the same time, I read continuous complaints by the NHS that it’s having to pay out large sums of compensation and lawyers’ costs.

When will they join up the lines, and realise that mismanagement of the birth process destroys lives and costs a fortune? Good management of units, training of staff, ongoing assessment of ability at all levels particularly including consultants, supervision, and destruction of the culture of always denying that they have been negligent; these normal business steps would save them a fortune.

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Conflict between brain injury case managers and solicitors
Posted By : Bill On 12/09/2018 14:31:52
­A recent survey in two parts has caused consternation in brain injury litigation circles. Exchange Chambers conducted a survey of solicitors to see what their attitudes to case managers is, and to gather their experience of working with case managers. The results were scary!

56% of solicitors have sacked and replaced the client’s case manager – reasons include failure to get the job done and failure to gain the family’s trust and respect – and the majority believe that case managers have no role to play in the management of the litigation.

Equally frightening was the finding that 77% of claimant solicitors say they have experienced a situation where the family has not acted in the best interests of their seriously injured relative.

These results clearly call for an open dialogue so findings can act as a catalyst to improve the whole claims and rehabilitation process.
Our findings were coordinated with a poll by Nockolds Solicitors which highlighted concerns from case managers over the conduct of solicitors.   Their survey found that 81% of case managers have experienced a situation where a claimant solicitor had clearly not acted in the best interests of the client.

Personally, I've always thought that a good case manager is the key to a successful outcome for the injured person, the family, and the compensation claim, and I maintain that view. The more the system becomes commercialised, though, the greater the difficulty of finding good case managers. So much of the litigation is bound up with the injured person and the family, and the plan for life, that it seems to me to be obvious that the case manager should be involved in some part of the litigation process.

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Disabled housing claims for catastrophically injured claimants
Posted By : Bill On 07/09/2018 09:25:47
The passage of time, inflation, and the reduction in the discount rate have brought accommodation claims to the forefront in catastrophic injury claims. A very recent example for me is a house costing £1.6 million.  The existing system requires the claimant to find that money from other heads of claim, leading to a shortfall in later life unless she can release equity when it is required.  This could be disastrous for someone with catastrophic injury, and may force her to capitalise future losses better suited to periodical payments.
All sorts of solutions have been proposed over the years, but none have been workable – and that might still be the case.
Some current suggestions are:
1              no claim for purchase price of property ie RvJ
2              defendant to pay the cost of the  property
3              the lifetime cost of renting a property
4              claimant or defendant fund a loan or a mortgage – periodical payments order or a lump sum to fund – repayable on death, or during life
5              the defendant buys the property and gives the claimant a lifelong tenancy
6              Similar to option 4 with the defendant owning part of the property, the defendant’s percentage being held in trust
7              equity release
8              a compromise of the claimant using the pain and suffering damages as part payment, the defendant to fund the remainder of the cost.
This blog is too short for a proper analysis of the suggested solutions, and the case law, but I've written an article for the next edition of Personal Injury Law Journal .­
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