Claims review
In a year when the financial world has seen so much change proportionality in relation to costs is entirely lost, particularly
and uncertainty, we are pleased to be able to report that the in relation to low value settlements. The solution to the
claims handling unit remains in a position to provide solid and problem of how best to achieve access to justice while
reliable support to members who are the subject of a clinical containing costs is not an easy one, and as mentioned in the
negligence claim. The MDU specialist claims unit was formed in Chairman’s report, we see the review of civil costs being
1993. An experienced and stable team is key to ensuring that undertaken by Lord Justice Jackson as a positive development
the MDU is able to offer a first class claims handling service to to which it is important we contribute on behalf of members.
members. We have a claims team who not only enjoy working
with MDU members, but also who have vast experience in all
The other area of challenge for the claims team is the size of
types of clinical negligence claims. Indeed, our Support Services
individual awards. In January 2008, the Court of Appeal gave
Manager has worked with the MDU for 38 years, and has
judgment in the Thompstonegroup of test cases and endorsed
certainly seen a considerable amount of change during that
the use of an index, which is not linked to the Retail Price
period. It is continuity of support, together with the security
Index, to be used when calculating the care costs element of a
provided by the insurance policy that is issued to MDU
compensation payment made under a Periodical Payment
members, that we believe offers the best possible protection.
Order. The impact of this decision has been an immediate
increase in the size of compensation payments made to
A landmark for the claims team was 10 years of assisting severely damaged patients, also bearing in mind continuing
members with clinical negligence claims under the Woolf improvements in life expectancy. A recession may mean
reforms. Lord Woolf’s changes to the Civil Procedure Rules unemployment, lower wages and falling property prices
were introduced in April 1999 and have been successful in which it could be argued will reduce the value of care and
streamlining the process for dealing with clinical negligence accommodation claims, but these costs continue to account
claims. Part 35 of the Rules set out an expert’s duty to the for a significant element of high value claims, and courts seem
court and, as many MDU members work in the medico-legal reluctant to enforce a claimant’s duty to mitigate any loss by
field, we have been monitoring the extent to which experts using state funded care, where such care is available.
find themselves the subject of litigation. It is perhaps not
surprising that the number of claims against MDU members
I have been asked on many occasions whether the recession
arising from medico-legal work remains low, and this must be
will have any impact on the number of clinical negligence
in part because members have acted on our
claims. It is perhaps too early to say given that some 30% of all
advice and ensure they fully appreciate the
claims against MDU members are
duties and responsibilities that go with
“we have found that
reported more than 3 years after the
working as an expert before taking on this
legal costs incurred on
incident giving rise to them. Even
role. The Experts’ Study Day that we hold
putting this aside, we do not
for doctors and dentists who are thinking of
behalf of claimants have
anticipate that overall the recession
moving into the medico-legal field, remains
increased considerably”
will have a significant impact on the
popular with those who wish to ‘test the
number of new cases, which has
water’ before committing to a case.
remained relatively stable in recent
years. It is only in the area of cosmetic treatments that we are
The Woolf reforms encouraged the exchange of information seeing a continuing increase in claims.
under the pre-action protocol before proceedings are served.
A change from 1 April 2009 is that an NHS complaint does not
In summary, the MDU claims team is well placed to cope with
have to stop when a claim for compensation is made. We do
the challenges ahead, and is committed to provide members
not envisage that this will cause difficulties for members but
with the best possible service and support should the need
claims and advisory colleagues will be happy to advise
arise.
members who find themselves the subject of a simultanous
complaint and claim. Overall, it is still the case that 70% of
medical claims notified to us are rebutted successfully on
behalf of members. Where a claim needs to be settled, it is in
everyone’s interests to do so at an early stage and 70% of
dental claims and 25% of medical claims that are settled do
not require the instruction of a solicitor on behalf of the MDU
Jill Harding
member, these are dealt with by our claims team. This means
Head of Claims
that legal costs are contained and a lawyer’s time can be spent
on those cases that we believe can be defended successfully.
In contrast, we have found that legal costs incurred on behalf
of claimants have increased considerably. One of the reasons
for this is the increasing use of Conditional Fee Agreements
(CFAs), sometimes called ‘no win, no fee agreements’. 21% of
UK medical cases brought against MDU members are funded
under a CFA and 46% of dental claims. With CFAs, claimants’
solicitors may take on the costs of the case and their clients
may not have to pay the legal fees if the case is unsuccessful;
but where the case is successful, solicitors may claim a success
fee, an ‘uplift’, that can be up to 100% on top of the original
costs. This means that Lord Woolf’s original aim of achieving
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