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Fighting for justice for injured people
Campaigning to put shattered lives back on track

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I am Deborah Evans, APIL's Chief Executive Officer. I shall be using this blog to keep you informed about campaining and political work carried out by APIL.

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Government must act now to introduce Meningitis B vaccine
Hartwell Jane | 19 Dec 2014

As the new year approaches and a general election looms, I hope one of the Government’s resolutions will be to move faster in negotiations to introduce a meningitis B vaccine for babies.

Meningitis B is a highly aggressive strain of bacterial meningitis which infects the protective membranes surrounding the brain and spinal cord. The UK has one of the highest meningitis B incidents rates in the world, affecting an average of 1,870 people each year. Anyone can get the strain, with one in ten affected people dying, and one in three survivors suffering lifelong after-effects. It kills more children under five than any other infectious disease in the UK. And meningitis B kills in hours.

Last March the Government announced that the UK's first lifesaving vaccine for meningitis B will be free on the NHS for babies. This vaccine, Bexsero, was first licensed by the European commission in January 2013. Unfortunately, the vaccine has still not been introduced. The Department of Health is still in negotiations with Novartis (the manufacturer of Bexsero) to agree the price at which the vaccine can be introduced into the NHS childhood immunisation programme. 

When it is finally introduced, the vaccine will be offered to babies from two months of age. A total of three doses will be given at two, four and 12 months. Babies who are already three and four months old when the vaccine is introduced will also be offered it as part of one-off catch up programme. The vaccine is already available on the NHS for a small number of children who are at risk of infection, at a cost to the NHS of £75 a dose. These include children with no spleen or those with a disorder of the immune system called complement deficiency. 

There have been some 1,000 new cases of meningitis B since this vaccine first became available and the cost to the NHS of treating those with this terrible illness is huge. The need for wider application of the vaccine is urgent. The Government cannot afford to drag its heels in agreeing a price for the widespread use of the vaccine. This misery has to end now.

The new duty of candour in the NHS - we have to start somewhere
Raizada Robert | 18 Nov 2014

The Government will soon introduce regulations that require all NHS providers to comply with a statutory duty of candour.  The General Medical Council and Nursing and Midwifery Council have welcomed this, and have introduced their combined draft guidance in a document headed “Openness and honesty when things go wrong: the professional duty of candour”. 

This was launched on 3 November, in the Governor’s Hall of St Thomas’ Hospital in London, and the Rt Hon. Jeremy Hunt MP, Secretary of State for Health, gave the opening speech. 

The event was attended by 120 guests who comprised mainly senior figures in the NHS and associated organisations involved in clinical governance.  On the panel, amongst others, were Sir Robert Francis QC, who chaired the Mid Staffs Inquiry, and Peter Walsh of AVMA.  I attended on behalf of the Association of Personal Injury Lawyers, as a claimant clinical negligence solicitor, and the co-ordinator of the APIL clinical negligence special interest group.

St Thomas’s is a very big hospital, situated directly opposite the Houses of Parliament, and the impact of the evening began as I walked through its corridors on my way to the beautiful old Governor’s Hall.  I realised that whilst my colleagues and I spend our days bringing claims arising from medical errors, our clients form only a very small percentage of the patients who mostly receive excellent care from the NHS.  Walking down those corridors also reminded me of the logistical challenges involved in delivering modern healthcare.

There is so much to respect, and so much to be proud of in the NHS, but in some respects it has lost its way, as shown by the Mid Staffs Inquiry.

Jeremy Hunt picked up this theme in his opening comment – that within the NHS there are 1,000 avoidable deaths every month.  Apparently this compares reasonably favourably with other countries, but he rightly said that we should not be prepared to accept it in ours.  The first step has to be to acknowledge when things go wrong – “until you call it a mistake, you don’t learn”.  Changing the rules will not be enough, we have to bring about a cultural change from within, and clinicians need to know they will not get into trouble for speaking up when things go wrong.  On the contrary, concealing errors should be more frowned upon than acknowledging them. 

The Francis inquiry found that there was no legal duty for clinicians to speak up about failings or mistakes.  This was undoubtedly one of the reasons why things became so bad at the Mid Staffs, where staff where evidently afraid or unwilling to speak up.  Thus, the duty of candour has to work both at an institutional and a personal level.  Clinicians, and the organisations that employ them, have to be open and honest if failings are to be understood and learned from.

Jackie Smith, chief executive of the Nursing and Midwifery Council, introduced the draft guidelines with the observation that it is the first time in the combined histories of the NMC and GMC that the two organisations have worked together to improve patient care.  The outcome is a very impressive and forward looking document.  I have no doubt that if the guidelines are followed, it will reduce the incidence of clinical negligence claims, and, where there are claims, it will make the process less confrontational, expensive and damaging for both patients and clinicians.

I am particularly impressed by the way in which the guidelines do not just focus on a duty of candour when something goes wrong.  They go back to the outset of the clinical relationship, and talk of clear communication before treatment even begins.  This is a healthy thing in any relationship, and will encourage a sense of shared responsibility for decisions and outcomes.

Of course fine speeches are easier to deliver than cultural change in huge organisations.  Contributions from around the room reflected this, particularly from those concerned with the “frontline troops” – the junior doctors and nurses. 

Their broad theme was that clinicians are by and large honest and decent people doing their best in circumstances where the key to improvement is often beyond their control.  How, for example, is an overworked junior doctor supposed to find time to adjudicate on whether care really is unacceptable, or just the best that can be delivered within the financial and logistical constraints of the NHS?  And what if his or her superiors or colleagues in the department disagree?  Will that person be seen as letting the side down, and will that damage the team spirit which is so important in any walk of life?

Therefore, whilst I think that there is broad acceptance of the need for a duty of candour, those who are charged with introducing it must do all that they can to ensure that healthcare becomes a field in which such misgivings do not even occur to people.

Paradoxically, this means that it must start at both the top and the bottom.  Senior people must be open about mistakes, and junior people coming in to healthcare must be introduced to a culture in which phrases like “concealment”, “swept under the carpet”, and “closing of ranks” become as antiquated in healthcare as the use of leeches and bloodletting.

After the meeting, I took a taxi to the station.  The driver was listening to a Radio 4 debate in which a very animated speaker was describing how, in the 1970s, a senior executive at an American car company was put on long-term leave when he raised a concern about defective components within the cars, meaning that safety never improved.  She said that in any organisation the best early warning system is the staff.  I wondered if it was live commentary from the meeting I had just left, but it transpired that they were talking about the child abuse scandal in Rotherham.

It just goes to show that whatever the environment - industry, social services, the NHS, the first step towards overcoming mistakes is to acknowledge them.  Both the NMC and GMC are to be commended for trying to create an environment in which this can happen without fear of blame, and I hope that the regulations, and their guidelines, will be thoroughly taken up.

The Price of Regulation
Raizada Robert | 14 Nov 2014
As the Legal Services Board continues its inquiry into the cost of regulation, it’s worth considering where those costs lie.

The cost of regulation cuts several ways. Law firms are subject to regulatory hurdles which they have to undertake on every case, for example money laundering checks, explaining terms and conditions, or confirming instructions in writing. There is a long list of things that must be done in every case and they cost time and money for a firm to undertake. On a higher value case, the costs form only a tiny percentage of the bill. But on a low value case, the ‘de minimis’ regulatory checks can be a significant part of the overall cost. In personal injury cases, where fixed fees are cut to the bone, the cost of these checks falls squarely on the shoulders of the solicitor, eating away at the profit that can be made on a case. In some cases, the cost of compliance may well contribute to cases being simply unaffordable to run. Too high a cost of compliance can impact on access to justice.

As well as the in-house costs of compliance, law firms face the annual bill for regulatory services, which forms part of business overheads. This regulatory fee coupled with the cost of compliance feeds into lawyers’ hourly rates and, inevitably, the consumer will also carry the cost of regulation through increased legal costs, a larger success fee, or increased insurance premiums. Compliance also undoubtedly slows down the progress of a case, particularly at the start. Time costs money.

So the question is how much regulation is enough? Regulation is there for a reason – the primary reason being to protect the consumer. So it is important that standards are in place, that fraudsters are weeded out, and that clients are given good clear advice on the things that matter so that they can make informed choices. Regulation is about outcomes, monitoring, enforcement, and supervision, and it doesn’t necessarily come cheap. It must however be proportionate, and many lawyers feel that the current cost of regulation is unsustainable.

Hopefully the inquiry will establish whether the level of regulation currently undertaken is necessary – are lawyers subject only to essential regulation or ‘nice to do’ activities that reap little return? Is our current system of regulation and compliance modern, quick, and efficient or time consuming and outdated? Does it match the modern system of working, with huge swathes of business being done online or over the phone? Is it a level playing field between regulators – with solicitors, barristers, legal executives and paralegals often working alongside each other in the same firms are the rules the same? Complexity, as well as time, costs money.

Hopefully, this inquiry by the oversight regulator will be the first step into getting proper regulation at a more proportionate cost.
Court reform in Scotland – will it achieve a better result for the injured person?
Raizada Robert | 07 Nov 2014

Gordon Dalyell explores the implications of the Courts Reform (Scotland) Act.

On 7 October, the Scottish Parliament passed the Courts Reform (Scotland) Act. This was a Bill long in gestation, given the genesis of much contained within the Bill came from the recommendations of the Gill Review of 2009. The passage of the Bill through the Scottish Parliament was, however, remarkably swift. The Bill was introduced in February 2014, evidence taken for stage 1 purposes by the middle of May, amendments dealt with by June, and at one point it looked as if the whole process may be completed by the summer recess. The independence referendum, however, got in the way and stage 3 was completed in October.

The Act will see significant changes to how civil business is conducted in the Scottish courts. The new exclusive competence limit of £100,000, down from the original proposal of £150,000, will lead to the vast bulk of cases, particularly personal injury cases, being dealt with in the sheriff court, rather than the Court of Session. The introduction of a specialist personal injury court, probably in Edinburgh, with specialist sheriffs will allow cases to be dealt with in a specialised forum. Even cases with a value of under £5000 will be capable of being raised in the specialist court though the precise rules governing these cases are still awaited.

However the elephant in the room is resource. Put simply, there will be little, if any, new money to fund these changes. The financial memorandum accompanying the draft Bill made a number of assumptions and assertions about the costs savings. Any detailed analysis of the financial projections immediately produced serious questions about how the figures will stack up. A significant extent of the projected savings is assumed to come from judicial salaries as cases will be dealt with by sheriffs and not judges. However, there is no sign of the number of judges being reduced in the short to medium term. The big lacuna relates to court fees. These are lower in the sheriff court than the Court of Session. Currently, the Court of Session takes in around £2 million a year from personal injury court fees alone. That is around 50 per cent of its total fee income. The proposed changes will lead to a shortfall of just over £1 million a year. This was not acknowledged by the Government in its original memorandum, nor adequately addressed when it was brought to their attention. Similar concerns about so-called savings from the legal aid budget were brushed aside. The Finance Committee of the Scottish Parliament produced a hard hitting critical report which was effectively ignored by the Cabinet Secretary for Justice.

The sheriff courts are already creaking at the seams. The closure of a number of sheriff courts has led to strain on capacity of those courts which require to deal with the influx of the transferred business. The transfer of criminal work from the High Court to the sheriff court is having an impact and will only create more pressure, and this will especially be the case in  the event that the proposed corroboration reforms proceed.

The new specialist PI court will only have two sheriffs. It is likely that over 2,000 cases a year will proceed through this court. Many APIL members are concerned that the specialist court and other sheriff courts will simply not cope with the volume of work.

The aims of the Act are laudable, but will only succeed if proper resourcing is provided.

The reality of the medical innovation legislation
Hartwell Jane | 27 Oct 2014

Brian Dawson is an executive committee member for APIL and the association's latest guest blogger. He specialises in disease and clinical negligence, including spinal brain injury,catastrophic injury and birth injury claims.

Maurice Saatchi’s story of his inspiration for the Medical Innovation Bill following the death of his wife from ovarian cancer is both heart rending and seductive. His grief, passion and sincerity are apparent for all to see.

I have met him more than once and was struck by his obvious intelligence and articulacy, but he is not a trained medical practitioner. Nor is he a lawyer and I suggest he needs critical friends from within those professions at this time.

The problem with this initiative is amply demonstrated by the following quote from Lord Saatchi:

"The patient, their family, their partners and their lovers may all be desperate for something else to be tried, something new, something innovatory, but the law prevents any innovation, however reasonably chosen and carefully managed. Why? Because it (Law) defines innovation as deviation from ‘standard procedure’ and deviation makes it medical negligence."

No it does not.

Negligence represents substandard care, which the medical profession itself deems unacceptable. Deviation from standard procedure in appropriate cases is not negligent. I am informed it happens frequently and Lord Saatchi gives several examples of such treatment.

I have never actually heard of a case being brought against a medical professional for providing innovative treatment.

So if medical professionals are saying they fear litigation, then I suggest this is either because the law of negligence has not been adequately explained to them, or they are not adequately recording the basis for exercising their professional judgement in this way, or alternatively they have been on the receiving end of inappropriate cases, which should have been defended.

The answer lies in education, not legislation and it matters because the present definition of negligence is well understood by lawyers and judges and can be easily applied to all cases in the complex field of medicine, which is developing all the time.

Once you try to tinker with it you run a massive risk of unforeseen consequences.

My heart goes out to Lord Saatchi but our main priority has to be patient safety and the probability that by trying to provide much needed help to those souls with nothing to lose, we inadvertently cause or facilitate injury to others.

I am convinced that Lord Saatchi himself would not want to achieve an outcome which put patient safety at risk, so I cannot help but wonder where are his friends at this time?
Deafness claims: We can rely on the evidence
Hartwell Jane | 13 Oct 2014
Our next guest blog comes from APIL executive committee member Bridget Collier. Bridget has more than 16 years’ experience specialising in occupational disease work.

An increase in noise-induced hearing loss claims prompted shouts of “fraud” from the insurance industry, and subsequently in the headlines.  Let’s think of reasonable answers to why claims have increased. Insurers say that three years ago the number of fraudulent noise-induced hearing loss investigations was less than half the number it is now.  On the back of this, insurance industry representatives claim that the answer lies in culling solicitors by reducing their fees presumably so we won’t take the work on.

The fact is, in the last three years more information about the right to claim for hearing loss has become widely available.  I myself am driven mad listening to the radio advertisements and on social media that tell me what the symptoms are and that there might be a claim.  But all this amounts to education.  Without it, you might just carry on thinking that deafness is something that’s crept up and you cannot do anything about it. But on learning that it might be someone’s fault and not an unfortunate consequence of age, of course it’s fair to make enquiries.

My dad thankfully now wears a hearing aid, before that he would miss whole bits of conversation. He would get upset that he was missing part of family banter and we would get annoyed with him for not listening properly.  He knows it is just his age though because the audiogram test proves this just as it can prove whether it is noise-induced or not.  An ear nose and throat consultant can work out what is caused by excessive noise and what is caused by age or health issues. With a test procedure with such specific results, a fraudster is obvious in several ways. We can surely rely upon on the evidence.

So why question the validity of these increased numbers of claims?  Information brings knowledge to those affected and they are then entitled to seek redress because their employer could have prevented it.  

Fraud is intolerable to all. But the insurers’ accusations make us wonder if they are simply trying to avoid paying out by shaming people out of claiming, as they know full well that the tests can prove their case.  

Help the other side or pay the price!
Hartwell Jane | 06 Oct 2014
The second guest blog comes from APIL's costs and funding group co-ordinator Gary Barker. Gary combines his time as a practising solicitor with being a freelance trainer and an assistant lecturer at the Open University.

We have an adversarial system in this country where the one with the best evidence and who is most organised wins.   But if you do not follow the rules or court orders you can also be punished.    This can mean  anything from having to pay more costs to losing the case,  unless you can persuade the court to let you off   But the courts recently seem to be moving us more towards the continental inquisitorial system and in  that system the parties have to co-operate with each other and the court to come to a solution.  

In July the Court of Appeal considered three cases where parties had not followed the rules about submitting their budgets for costs to the court.   The details of the three cases are not important but the Court of Appeal made a very important statement right at the end of their judgment that they did not expect to see many  people excused from punishments.  They gave two reasons for this, the first (understandably) was that they expected people to comply with the rules and court orders.  The more surprising one is that they expected the parties to co-operate to solve any difficulties that arise.

The impact of this second statement could be very serious for the injured person. For example, if a defendant’s insurer does not comply with a court rule, such as providing an expert’s report on time, it becomes the duty of the victim to help the insurer out by agreeing a new deadline.  This means that an insurer could manipulate the system to delay matters and put pressure on the victim by depriving them of their compensation for much longer.   Many victims are in the position where their injuries mean that they are off work for a significant period of time and get into financial difficulties.  Sometimes they are unable to pay their mortgage or other debts such as credit cards.   This puts enormous pressure on the victim and can lead to them accepting a low offer of compensation in order to be able to make immediate payments.  For many years insurers have tried to use this pressure to force victims into getting less compensation than they deserve. The courts now seem to be giving the insurers even more opportunities to perpetrate this injustice.

The result is that the victim and their solicitor may have to accept bad behaviour by the insurers.  This risks the client feeling that the solicitor is not on their side and therefore affecting their relationship.   It would be very unfortunate if the good working relationship between solicitors and clients was damaged by some general remarks by the Court of Appeal but that is the very real danger that has been created.

All of this makes it vital that clients provide all the information and paperwork that the solicitor needs as soon as they are asked, to avoid them falling into this trap.  It also means that sometimes the solicitor will be doing things to help the defendant’s insurer that neither the solicitor nor their client are entirely happy with, but which the courts insist that they do.

When is a lawyer not a lawyer?
Hartwell Jane | 15 Sep 2014

The Law Society's 'use a solicitor' campaign has garnered much attention. Their message is clear - solicitors are the best people to speak to for legal advice. Obviously we would agree with their advice to steer clear of fly-by-night, unprofessional, and unregulated providers. But in these days of diversity, with so many different types of lawyer - any of whom could be experts, regulated by a variety of different bodies - is this message 'use a solicitor' really the whole answer?

So, would 'use a lawyer' be more appropriate? The term 'lawyer' is very inclusive. It incorporates solicitors, barristers (including direct access barristers that will meet with clients) legal executives, licensed conveyancers, and properly supervised paralegals; and makes no judgement of superiority between them. 'Lawyer' is a simple term understood by the man on the street, and describes the activity, not the role.

Your lawyer’s ability to be a good lawyer is not defined solely by his route to qualification, and it is outdated to think that certain routes 'trump' others. The new 'legal apprenticeship' route promises to produce some fine young lawyers of the future. A good lawyer requires in-depth understanding of the law, expertise, experience, good skills in handling people - whether they are the client, the insurer, or another legal professional - good negotiation skills and above all, the ability to get the right settlement for the client as quickly and painlessly as possible.

So how can you spot a good lawyer? We believe in the value of expertise, and developed our accreditation system to allow expert lawyers who meet high standards to stand out from the crowd. Many of them are solicitors, but not all.  Our experts include people of all disciplines and backgrounds. Accreditation is based on competence, not qualification, and on proven ability to do a good job.

APIL wholeheartedly supports getting the best person for the job. Want an expert? Find an accredited lawyer.

Trust me, I'm a doctor's report
Hartwell Jane | 15 Aug 2014

For too long, insurers have argued that some medical reports are just not worth paying for, which has undoubtedly spurned distrust in the quality of reports, and driven the growth in pre-medical offers, which have done little to assist in the fight against fraud. The recent Government announcement of the intention to accredit the medics who undertake whiplash examinations is an important, positive step that is to be welcomed.

A good report is one worth paying for. The majority of medics are doing a good job, so what will accreditation achieve? Firstly, it gives consistency. An accredited medic will undergo refresher training in best practice diagnosis and prognosis. They will be completely conversant with their responsibilities to the court:  the need to remain independent of mind and provide an accurate and honest opinion which is in no way influenced by the paying party. The reports will be improved to make them useful and meaningful in assessing the right level of compensation. Reports will be audited and checked to make sure that they are tailored individually to each injured person, and contain sufficient useful information to enable a lawyer, or a court, to make a good determination. They will be precise, not woolly.

The process of the examination will be agreed by medics.They will agree what timeframe is sufficient in order to make a good diagnosis,and will be able to call for medical records if needed so that they can see the individual’s medical history. Previous injuries can show whether there are likely to be complications or an extended prognosis due to exacerbation of a previous injury. Some people are indeed unlucky enough to be injured more than once.

A key focus of the Government announcement was that costs would be predictable and controlled, and this new improved process of medical reporting will cost significantly less. This will help keep the burden on premiums proportionate. Also, a cheaper, better quality medical report must surely be one that insurance companies will want to pay for, and the prolific flaunting of pre-med offers will die out. Let’s hope so. The aspiration here is that no fraudster will ever be offered money before they are seen by a doctor.A doctor has the skills to weed-out the fraudsters from the genuinely injured who need help. It is their job to look at injuries and people with medical problems all day, so inconsistencies should surely be spotted. A fraudster, faced with a medical appointment, and a potential fraud allegation, would hopefully be put off from taking his deception any further. Whereas anyone is going to struggle to turn down a ‘no questions asked’cheque from an insurance company. “Free money? Thanks very much”.  

The Heroism Bill: needless legislation?
Raizada Robert | 11 Jul 2014

I have been largely out of action for a short while following the sudden and untimely death of my daughter Lydia in a tragic car accident in Australia in May, which has knocked me and my family for six. I am back working now, and I am reminded what a privilege it is to be part of the APIL team. Our vice-president, Jonathan Wheeler, in particular, has covered my responsibilities in my absence, and to impressive effect.

I come back to the many challenges we face, and I’ll be taking forward our objectives, which we will be working hard to meet.
 

A Bill to protect heroes. The concept is populist and eye catching, but the Social Action, Responsibility and Heroism Bill is at best needless, and at worst dangerous.

The Bill represents a re-statement of the law as it currently stands in the Compensation Act 2006. It is therefore literally superfluous, and unnecessary. If that is not enough, the impact assessment of the Bill claims that: ‘There is some evidence to suggest that worries about risk and/or liability can deter people from participating in voluntary or charitable activities’. This is based on a 2006/7 national survey of just under 300 respondents. This evidence is apparently contradicted by a more recent and extensive survey referred to in a Cabinet Office press release issued in February last year, which stated that a survey of 2000 adults showed a ‘sharp rise in volunteering, which reverses the steady decline since 2005’.

In fact, the law will offer no new protection to ‘heroes’. True heroism should not necessitate negligent behaviour, and any accommodation of negligence is wholly inappropriate.

Thankfully the Bill does not change the law of negligence. However, more worryingly, those employing volunteers might be encouraged to relax rigorous risk assessment which could put children and other vulnerable people in harm’s way Consider for a moment the possibility of corner cutting by a chairperson of a children’s football club, in vetting the suitability of volunteers in the belief that they are afforded protection because they are ‘acting for the benefit of society’, under the terms of the Bill. Children under the care of such volunteers might be made more vulnerable as a result of corner-cutting.

This proposed legislation is poor from every angle, and gives the very clear impression that meaningful statutory change is being by-passed in pursuit of courting populist appeal.

It's a sore point
Carter Tim | 03 Jul 2014

Its bad enough being ill, but if you also have the misfortune to develop a pressure ulcer (or bed sores as they used to be known) through lack of nursing care, it can be a nightmare.

Let’s be clear about this – this isn't just personal injury lawyers generalising about hospitals getting it wrong again. Some hospital trusts have excellent practises, putting the others to shame.  We have identified 15 Trusts that see thousands and thousands of patients (one of them alone sees nearly 75,000 patients) that have managed zero instances of critical pressure ulcers.

Pressure ulcers are painful, but fortunately up to 95 percent are preventable with good care. However, not all hospital Trusts have such an impressive record. Some are shocking, with over 50 per cent of pressure ulcers becoming critical. Why is the standard of care so variable?

A critical pressure ulcer is one that has deteriorated to such a level that the skin loses its viability - you can see body fat, muscle, bones and tendons. These are seriously painful and difficult to heal, taking considerable time, and impacting on people’s lives often rendering them unable to return to work, or needing daily support.

Pressure ulcers cost far more to treat than to prevent. They are estimated to cost a staggering £2 billion pounds a year. Hospital stays are extended, taking up much needed beds. Prevention is always better (and much cheaper) than the cure.

It’s a postcode lottery – take a look at the map here. I live in the countryside, pretty much equidistant between Burton and Leicester. Having seen the league tables, heading to Burton is the most sensible option for me. Given a choice, I might head down to the M42 to Birmingham, where the instance of serious pressure sores is zero, indicating good standards of care.

With something so simple to prevent, patients should be guaranteed good care. APIL proposes a simple five point plan to improve the situation for every patient at risk. This includes mandatory training of staff,and making sure that anyone at risk of a pressure ulcer has an allocated individual to provide appropriate care. National data collection and analysis would quickly highlight areas for improvement. It’s not rocket science, but it would make a huge difference. It shouldn't be a lottery.

Fifty ways to defeat a fraudster
Raizada Robert | 13 Jun 2014

Whiplash claims fell by 16 per cent in the last year. However, the insurers’ tales of fraudulent claims still abound, and as such the Government, along with professionals at the very top of their respective legal and medical trees, are currently beavering away to reform the handling of whiplash cases. This is a multi pronged attack on fraud.

Firstly, all accident victims wishing to claim for their injury must see a doctor who will establish whether the claim is genuine. Whilst this sounds like common sense, the reality is at present that thousands of claims get settled by insurers without them bothering to check that someone was actually injured.

Secondly, the doctor who carries out the examination must be an expert in their field, trained to detect fraud and exaggeration, and will be accredited to ensure that they remain competent.

Thirdly, insurers are being encouraged to share data with the lawyers about the client. Three whiplash claims in the last two years? The lawyer will be properly informed, and will expect claimants to tell the truth. Lawyers only want to deal with genuinely injured clients who deserve compensation, not those after a fast buck.

Fourthly, medical records will be consulted where necessary. This tells the examining doctor a lot about the injured person, what their previous medical history is, and how quickly they are likely to recover.

Out of nowhere last week came another Government announcement, independent of all the current discussions about fraud. This announcement was two- fold: firstly, a ban on cash inducements and other incentives. Solicitors will no longer be able to entice the client through their doors by waving a cheque for £2,000 at them. This is good news, we say. For too long, the reputation of ethical lawyers has been damaged by crass advertising and marketing gimmicks, giving the whole profession a bad name.

As a result of these reforms, fraud should be defeated, and genuinely injured people should have nothing to fear when bringing claims. Or have they?

Another new Government announcement proposes that claimants with dishonest or exaggerated claims will get their whole claim thrown out of court. At present, judges remove any exaggerated or dishonest elements and only allow claimants to recover money for their genuine injuries. Judges use their discretion to introduce cost penalties or, if the dishonesty is severe, to throw the case out. This new proposal takes away judicial flexibility – any exaggeration and the whole claim is thrown out. But the world is not that black and white. Insurance companies allege that a claimant is exaggerated far more than you would think, and those allegations are often undeserved. A threat of exaggeration could be used as a tactic to force genuine claimants to settle for a low amount, through fear of getting nothing at all.

These cases are too expensive to fight in court so, in the circumstances, the little guy may just admit defeat.

Pause for thought
Hartwell Jane | 12 May 2014

It’s rare in your working day that you get the opportunity to just stop and think. The APIL annual conference provides time to do just that,with speakers who will inspire, challenge, and encourage you to question what is right and what is wrong about the environment in which we work. So what were the hot topics? What were the burning issues and developing themes?

Well, advertising, for one thing, continues to attract attention. Is it distasteful or just good commercial sense? Most people,thankfully, never have need of an injury lawyer, so don’t experience first hand the commitment, care and expertise. Injured people who that have used the service tend to have a far more generous view. The wider public see only the adverts - injured people waving cheques in the air, or dancing down the street –and, fired up by the Daily Mail, become more cynical. Broadcaster Nick Ferrari,who took part in our panel debate, pointed out quite rightly that it was time to clean up the public face of the profession. Why can’t all lawyers attract new clients in a way that doesn’t cheapen the service we provide, or make the deserving victim look like a money grabber?

Another issue for members is the fluidity of the marketplace, and the growth of the big players. Andrew Grech from Slater & Gordon provided insight into the mindset of one of the biggest firms of PI lawyers in the world. Where some had expected a demonstration of gritted teeth commercialism, instead they saw a firm that was ethical to the core with a passion for caring for the injured client. Strong ethics, combined with good business sense, can take a firm to the top.

The use of technology in the law continues apace, but in a very different direction. Before technology was all about document management or case management – providing a framework to improve the way a lawyer works.Now, IT adviser Richard Susskind focussed on the use of more disruptive technology-– software that will make legal decisions without the involvement of a lawyer. Major change and automation is frightening for some, whilst providing an opportunity for others, but use of such technology may allow law firms to provide good quality, quick advice with lower overheads, with lawyers focussing on client care and more complex decision making.

The APIL conference never loses sight of the injured person,and it was moving to hear first hand from those who had undergone life-changing injury. Most pertinent was the difference it made to their quality of life when it was possible to recover compensation. Two people – both paraplegic – told their stories. One, injured by virtue of a disabling illness was unable to afford a lightweight wheelchair to make life bearable, and could not shower at home for over a year until sufficient money was saved to modify the shower. The other, injured through negligence, was able to have proper adaptations made to his home early on and was provided with funds to ensure that good quality wheelchairs would be available throughout his life. The difference was stark.Compensation is about so much more than money – it is about care, dignity, and the ability to get a life back on track.

 The incoming president’s speech provides the opportunity for reflection, giving insight as to one man’s perspective of the fundamental importance of the job we do. John Spencer talked of the basic right to claim compensation and asked everyone –politician, lawyer or doctor – to focus on doing the right thing by injured people. Doing the right thing can be tough – it might not be quick, or cheap –but justice should never play second fiddle to commercial interests.  With John’s ethical core, strong sense of purpose and unerring commitment, APIL is truly in safe hands.

Medical Innovation Bill
Raizada Robert | 25 Apr 2014

Lord Saatchi, driven by the loss of his wife to cancer, is seeking to remove some of the perceived barriers to medical innovation and research with a view to helping the medical profession progress in improving treatments in this and other areas.

The Bill looks to give doctors more freedom to innovate. He feels that medicine has become too defensive and that doctors are loathe to innovate for fear of litigation.

We are all in favour of innovation to save lives, but medical research and innovation is complex – is it possible to have a more open approach without endangering lives? Indeed, Lord Saatchi has no intention of opening the door to reckless experimentation.

So how does research work at present? Robust safeguards are put in place for any new treatments and patients are given clear, independent advice about their options by someone with no vested interest. The results are then fed into the research and conclusions will be drawn across a wide group of people, rather than just an individual. It takes time to build up a picture. Doctors can already depart from standard treatment as long as a reasonable body of the medical profession would agree.

So, do we really need a Bill? Its aims are commendable but it is surely more appropriate to educate rather than legislate in these circumstances. Perhaps we could have a debate about the ethical guidelines and standards in the medical profession to see whether they allow sufficient innovation, and maybe the speed of research could be improved, as long as this does not remove the protection for the patient.

The key will be how they seek to define ‘innovation’. With any policy change comes unintended consequences which the Government will need to guard against. Could legislation create more bureaucracy and red tape? We do not want to see an environment where doctors feel compelled to innovate, or worse still, be threatened with prosecution for not innovating. Worse still, it could give patients the power to press for a treatment they have heard about on the internet, even if there is no science to support its use, or make doctors more susceptible to commercial pressures from drug companies at the expense of vulnerable patients. A terminally ill patient will jump at any offer – it is not so much informed consent as desperation.

A Miscarriage of Justice
Hartwell Jane | 05 Mar 2014

The true tragedy of Hillsborough unfolded when the web of deceit, lies and intricate cover up were finally exposed and laid bare for all to see. Justice is something that lawyers hold dear, and it is clear that a great injustice has been perpetrated. However, did you know that the events of Hillsborough helped to shape the law? That decisions were made in court that still impact –we think unfairly - on cases today?

Where an important decision is made in a case it is known as a ‘precedent’ – a new piece of law that is then applied to similar circumstances in other cases. Such case law is always set within the context of the case in which it is heard – what happened, whose fault was it, and do these people deserve to be compensated? The events of Hillsborough set the law on‘psychiatric harm’, sometimes known as ‘nervous shock’ which is the trauma that you suffer when you witness something truly dreadful happen in front of your eyes - such as a family member dying in front of you in unspeakable circumstances. These memories are burnt irrevocably on the brain, and have a huge impact on a family member’s ability to move forward and live a normal life. This is more than just grief or emotion – this is about family members who end up with a mental condition – whether it is through anxiety, depression,or other serious problems.

At the time, the decision was that only those in the direct proximity of those who died or were severely injured could be compensated. So, a father who watched his son die first hand, and suffers lifelong depression as a result can be compensated, but the distraught mother who hears of the events via the television or the radio, could not be compensated even if she ends up with permanent mental damage as a result of the event.  

This is the rule that is now applied in all cases in which psychiatric harm affects a family member. We think this decision is arbitrary and unfair – if in both cases, the resulting trauma occurred needlessly at the hands of another, shouldn't they both be entitled to compensation?

The decision was based on the facts in the case as they were presented at the time. Facts we now all know to be false. Knowing what we now know about Hillsborough, we can only wonder if the case would have resulted in a different decision if presented with the true facts. It is impossible to answer this hypothetical question. The Law Commission raised its concerns about the arbitrary nature and unfairness of the current decision as far back as 1998, and yet still the law stands. The Law Commission thought it wrong to exclude those family members who were not in close proximity – recognising that those with close ties of love and affection who also suffer a mental illness as a result of the death, injury or imperilment of a family member should be compensated. They thought the law too arbitrary.

APIL calls for the law on psychiatric harm to be reviewed.  It is unfair, unjust and is simply not the way we should treat people who have already been to hell and back.

The interpretation of data
Hartwell Jane | 26 Feb 2014

Never underestimate the ability of factual data to add real credence to an argument.Policy making backed by real evidence is generally a sound way for the Government to proceed. And yet, data is so often open to interpretation, or more to the point, misinterpretation, that it needs handling with care and balance.

Professor Nick Black said this week, having been asked by the NHS to see whether hospital mortality figures are an indicator of poor care, that such figures give “a misleading idea of the quality of care of a hospital" and suggested that the public ignores them. But those figures indicate the number of deaths, and every single one of those deaths matter. The majority of deaths will have been inevitable, and I appreciate his point that if there is no hospice nearby many terminally ill people will die in hospital, but there are undoubtedly local factors to be taken into account. Maybe we need some balance to the reporting to reflect specific circumstances. However, ask a clinical negligence lawyer and they will tell you that at least some of those deaths were needless and could have been avoided.

Indeed, the Keogh report last year found failings in care in 14 of the hospitals with the highest death rates. High mortality data caused alarm bells to ring about Mid-Staffordshire NHS Foundation Trust, which is now in the process of being dissolved.  There is usually no smoke without fire.

Being held to account publicly can be tough. However, it’s a good thing that such figures are in the public domain, even if it may knock a bit of the shine off the NHS.I am a huge supporter of the NHS, which gets things right by far the majority of the time. Infrequently, accidents happen, mistakes are made unwittingly, and people suffer as a result. We shouldn’t try and pretend it doesn’t happen, ignore it, or excuse it. Publishing figures is an excellent driver of real improvements to health and safety. High mortality rates undoubtedly raise question marks, flagging where there is increased risk of poor quality care.This risk-based approach informs the decision by the Care Quality Commission as to which hospitals to inspect.

At APIL we strive to prevent needless injury for those undergoing medical care and treatment. Mortality figures do not provide the whole story, but they provide an alert mechanism that can prevent future medical negligence. We should improve the reliability of the figures, rather than binning them. Hospitals will be pushed to improve, and that can only be a good thing.

Show me the money!
Raizada Robert | 28 Jan 2014

So, insurance premiums have fallen by 12 – 14 per cent according to the insurers? Yeah right. Like many of you out there, I have seen my premium go up yet again, despite having an accident free year, whilst driving exactly the same car. I do appreciate, however, that it’s not just about me. I may have suffered for being female (the European court objected to women being automatically viewed as safer drivers and given reduced premiums). However, as the news stories run online, many of the comments posted reflect some disbelief in the figures.

So how is this figure calculated? Well, the figures are industry-generated and are shrouded in mystery, to say the least. And, let’s face it: the renewal figure quoted by your existing insurance company is often higher than if you switch to a new provider. Loyalty, like crime, doesn’t pay. Sometimes, the same insurance company will even quote you a lower price online or through a price comparison website than they do in the renewal letter. The price you are quoted is not always the price you end up paying. So the calculations could use any of these premiums - statistics could be handpicked to prove a point. Hence our distrust.

So why does it matter? Reducing insurance premiums is a key objective of the Government. The desire to reduce the cost burden has informed recent policy developments in the personal injury field. Referral fees have been banned. Injured people now contribute to their lawyers costs in order that the bill to the wrongdoer –or more importantly their insurer - is reduced. This avoids passing on that cost to the motorist through premiums. That change, plus the introduction of significantly lower fixed fees for lawyers in road traffic cases, has reduced the bill to the insurer markedly. So, we should rightly expect premiums to fall in a way we can all measure.

But the effects cannot have been felt so quickly. The new rules only apply to cases which began after April 2013. It takes time to run a legal case, and the bill isn’t payable until it finishes, so these cost reductions will only just be starting to really deliver benefits to the insurer. How can that possibly have translated into lower premiums so soon? The Government is unlikely to look at further reforms until it sees reductions in premiums which are linked to the last set of reforms. It wants to see any savings passed on to the motorist through a real reduction in premiums. Recent decisions, such as the sensible decision to put the increase of the small claims limit on hold, will have disappointed insurers. In order to kick start the policy agenda once more, insurers will need to maintain a tangible drop in premiums. Hence, presumably we should expect a repeated flurry of announcements as insurers try to prove their point, or am I just being sceptical?

I’m all for a real reduction in premiums. Otherwise all this reform has been all pain, no gain. I’m as keen as anyone else for an update on progress. However, in order to gain trust in the figures would it not be better if the Government were to commission annual research into motor premiums across the industry? There would then be a central, independent method of calculation that was open to scrutiny and a report that was free from bias.

Such figures could then be used to inform policy making with confidence, not suspicion.

Taking on the piste...safely
Hartwell Jane | 14 Jan 2014

It’s the ski season and I am heading off to the slopes. Anyone else doing the same may also have Michael Schumacher’s recent accident in mind. It’s worth asking the question - just how safe is the popular seasonal pursuit?

Skiing, as a sport, comes with inherent danger. It is an extreme sport, and injuries and accidents are relatively common place – albeit, most of the time, minor. However, as anyone who has skied would know, it would be rare for the plane home not to involve at least one person boarding with a newly acquired plaster cast.

Skiing accidents can range from a sprained ankle through to life-changing incidents such as paralysis or brain damage, or in the worst cases, death. For most of us who ski safely on the piste within our own levels of ability, we risk little more than a sprain or a broken bone. For those who ski off-piste, extreme ski in the park, heli-ski, or ski at high speeds, the inherent risks are greater. Prevention is always better than the cure, and skiers need to take responsibility for their own safety.

Whilst skiing may result in accidents, few are as a result of negligence. This means that most of the time, you are unable to claim for your injuries. Your travel insurance will cover the costs of your hospital treatment if required, and the cost of getting you home, particularly if you need three seats on the plane to fit in your plaster cast.

So, in what instances could you make a claim for your injuries? Most likely this is where you are involved in a collision with another skier or snowboarder, and it is their – not your - fault. Perhaps they have lost control, or are skiing too fast, or are not looking where they are going or are not giving you enough space. Problems are sometimes caused by snowboarders who fly onto the piste from a great height over blind jumps with little idea of who may be ahead until it is too late. Snowboarders have caused serious injuries to other skiers’ shoulders and chests in this manner. I am aware of a snowboarder hitting a skier in the chest, breaking three of her ribs, and then snowboarding off blissfully unaware leaving the skier in a crumpled heap behind them.

Accidents often happen on ski lifts as a result of user error - poor exit or entry technique, but for a claim to be made there would need to be negligence – the ski lift would need to be faulty, or not properly maintained and have caused the accident for example. This is rare. Most lift accidents are caused by the inability to balance on a t-bar or to dismount gracefully from a chair. It’s not easy...

Sometimes, the injury is a result of faulty hire equipment. It is really important that shops take care to ask appropriate questions when hiring skis about the ability of the skier, and measure both the height and weight of the skier, along with their shoe size. At the shop I go to, they weigh and measure you to avoid any vanity-based underestimates by the skier. It matters because, without this information, the bindings will not be properly set. In a collision, the skis may not release, resulting in unnecessary broken legs. Indeed, claims have succeeded in exactly these circumstances.

Rarely, the ski instructor may be liable for the injuries sustained e.g. if he leads the class into difficult terrain way beyond their abilities, or takes skiers down slopes with inadequate training.

Occasionally, injuries may be the fault of the resort, if they dig great holes in the piste, or park their snowploughs around blind corners, or, worse still, crash into people with their skidoos. It is rare that the unprotected skier will come off well in a collision with a 10 tonne snowplough.

If there has been negligence and you need to make a claim, you need a personal injury lawyer who specialises in claims abroad as there are different legal systems in different countries. If you have had an accident whilst skiing in Canada or the US, the law can even vary from state to state. Your travel insurance may cover your legal expenses, or you may find a lawyer willing to offer you a ‘no win no fee’ agreement. You need an expert.

Fortunately, negligence is rare, and accidents are just that– accidents – and there is no-one to blame but yourself and your dodgy skiing technique. So, accepting that it is a dangerous sport, how can you reduce your risk? Firstly, wear a helmet. They are compulsory in some parts of America and Canada, but optional in Europe. Yet, you would be a fool not to wear one. They can truly save your life, and certainly reduce the risk of brain injury on a collision.

Secondly, follow the rules. Look in every direction before starting out down the slope. Show respect – give the person in front of you priority, do not endanger others and leave plenty of space between you and other skiers when overtaking. Ski in a controlled way, and adapt yourself to the conditions – if a slope is crowded, slow right down. If you need to stop, do it at the edge of the piste, not the middle. And watch out for the piste markings, particularly the black and yellow ‘danger’ indicators.

Thirdly, if you do have an accident, or witness an accident, and someone is injured – treat it like a car accident -exchange details and call for emergency assistance.

Skiing is great fun, and is good for your spirit as well as your physical health. Accidents do happen, but with common sense, can be avoided. Take care, and see you on the slopes.

2014 - a year to respect the needs of injured people
Hartwell Jane | 02 Jan 2014

Twenty four years ago, a number of influential and passionate personal injury lawyers formed the Association of Personal Injury Lawyers. They formed the association not to look after themselves and their own interests, but to campaign for the millions of people needlessly injured each year by drivers, negligent employers, and careless medics. It was about giving hope of a future to those whose lives had been shattered. It was about care, compassion, and importantly, justice. It was never about the money.

But twenty four years later, injured people are still not getting the justice they deserve. Having made so many steps forward in the fight for justice, the drive to cut costs began to unpick some of the good work we have done. The arrival of the LASPO Act brought about the erosion of damages, leaving  injured people with less compensation in their pockets – compensation that they need. Being injured can be life-changing in the worst possible way. It can prevent you from earning money to pay your mortgage, from driving, being able to live a normal life, whether just in the medium term whilst you recover, or, sadly for some, for the rest of their lives.

The introduction of fixed fees in lower value cases, and proportionality rules and cost budgeting in higher value cases had another sinister impact. Some really deserving cases became, at the stroke of a Government pen, simply too expensive to run. We face the spectre of law firms having to turn away deserving,genuinely injured people if the case is more complex, expensive and hard to fight. So who are these victims? Well, all too often we read about the abuse of dementia sufferers in the press. Yet, because the cases are difficult to prove– the sufferer cannot give reliable evidence, and life expectancy is short, so damages are usually low, while the costs of running a case can be  too high for it to be allowed to proceed. As a consequence, the most vulnerable in society are being injured with no recompense. Morally, this cannot be right. The injured person is still far too often linked with the notion of  fraud. Claiming compensation is too often portrayed as a burden, not a right. Growing claims figures are a disgrace – but when reporting on this fact the media misses the point. The disgrace is the increasing number of people who have been needlessly and thoughtlessly injured.The disgrace is that some employers care little about prevention of avoidable injury, that some of our hospitals and care homes are not always properly resourced, and that our public facilities are not maintained.

And the excuse for this? Cost. Money. And yet we live in a relatively affluent world - a world that chooses to spend money on the wrong things. A world that thinks motor insurance premiums are better spent on flashy replacement vehicles,excessive TV advertising, and price comparison websites rather than looking after the human being injured behind the wheel. We all have choices as to how our money is spent. Together, we can exert pressure on the insurers to find their moral backbone and get their priorities straight.

Martin Luther King once said that he refused to believe that the bank of justice is bankrupt. I agree. There is sufficient money to do the right thing for injured people – it is just being spent on the wrong things – on meaningless, flippant things that have no real value.

I hope 2013 may have been the end of radical legal reform, and the systemised unpicking of our legal heritage. Even if I’m right, 2014 still heralds the start of a new fight for APIL. Our fight has always been about justice. This year, the fight is even more about changing the perceptions of the decision-makers and the influencers in Government and getting them to see things our way. We want to deliver something tangible and real for the injured person – respect.