Protracted settlement shows how NHS handling of claims increases litigation costs

Posted: 18/10/2016

Penningtons Manches LLP recently settled a claim for substantial damages against East Kent University Hospital NHS Foundation Trust, following a knee replacement that left its client with significant pain and reduced function. The case highlights how the legal costs of settling a legitimate clinical negligence claim are escalated by the way in which the NHS conducts its defence. It presents a stark warning as the Government threatens to cap claimant legal costs that any changes need careful thought to ensure patients are adequately protected.

The client in this case had a road accident in the 1960s in which his left femur (thighbone) was fractured. He underwent standard surgery at that time, which left him with a permanent and significant deformity – the fracture healed in a position that was bent inward towards his other leg (varus) and backwards (recurvatum). For decades, this caused him no problems, but it did change the natural wear and tear in his left knee, leading to early arthritis. This became painful, although it did not limit what he could do. Over time, the pain increased and in 2010 he was advised that a knee replacement could resolve his pain. He asked whether his deformity would be a problem, but was reassured by the surgeon that the type of knee replacement being recommended was bespoke to him and could treat his pain without the deformity causing any issues.

In fact, like any knee replacement, the prosthesis that was implanted was not bespoke, but standard. The patient-specific aspect lay only in determining the position in which the prosthesis was to be implanted and the equipment to achieve that position. There was no criticism of this technique, or the way it was carried out. The expert evidence obtained by Penningtons Manches, however, was that replacing this patient's knee without correcting his deformity held almost no prospect of resolving his symptoms. To advise him otherwise had been negligent. 

The defendant relied on expert evidence that the approach the surgeon took in this case was entirely reasonable in the circumstances. This was despite being unable to produce any literature showing that patients with the degree of deformity the client had could successfully be treated by knee replacement alone.

Following the knee replacement, his symptoms became worse – not only was his pain increased, but he was very restricted functionally. Having worked as a carpenter until the day before the operation, he was unable to go back to work because of the physical restrictions he now had.

The surgeon later tried to manipulate the knee surgically, but to no avail. Only then did he acknowledge that the client's pre-existing deformity was causing stiffness and pain and that further surgery was needed to straighten the femur before revising the knee replacement to line it up properly with his hip. The surgeon referred him to another surgeon for this procedure, but this was by then complicated because of the knee replacement that had already been performed. As a result, the outcome of the revision surgery was only very limited improvement compared to the outcome the client could have expected had the correct surgery been performed in the first place. He was never able to resume working and needs long-term care and assistance because of the impaired mobility he continues to suffer.

The NHS denied negligence throughout this case, despite settling it for just under £100,000. That settlement was reached only three weeks before the case was due to go to trial at the High Court in London. This is a classic example of a case in which the legal costs now exceed the value of the settlement, not because the claim lacked merit, but because the defendant's conduct prolonged the claim. Its failure to take an early and pragmatic approach to the allegations vastly increased the client's legal costs. The NHS will not have to pay all of these, but the bill it does pay will undoubtedly be higher than it needed to be.

Claims have become subject to costs budgets in recent years, which the courts fix according to various factors. It is still too early to say what impact the budgeting process is having on the legal costs that successful claimants are able to recover. The Government has nevertheless recently confirmed its intention to proceed with a consultation to fix the fees payable in successful clinical negligence claims according to the value of the case. The detail of the proposals is unclear and yet to be published, but the objective is plainly to reduce the legal bill for claims from patients injured negligently by those on whom they rely for clinical treatment.

The impact of fixed legal costs is likely to be that many patients, particularly those with lower value claims, will find it difficult to achieve redress through the legal system, regardless of the merits of their case. The elderly and those on lower incomes are likely to be disproportionately affected because their claims tend to include more limited financial losses.

Few would argue that NHS resources are better spent on clinical services than legal claims, but reducing negligence in the first place, through better education and resourcing frontline staff, would be a more effective and equitable solution than curtailing the scope for patients with legitimate claims to pursue their legal rights. 

Return to news headlines