Two NHS trusts’ different approaches to similar clinical negligence claims

I have been a clinical negligence lawyer for over 21 years, acting for clients who have been injured as a consequence of medical or clinical negligence. My clients have suffered orthopaedic, gynaecological and obstetric injuries. Some have had a delay in a cancer diagnosis or a cancer misdiagnosis and others have died and I have acted for their family. Clients have also included children who have sustained a brain injury.

Each case will have at least one defendant, usually an NHS Trust, a doctor in private practice or a GP, or a combination of all three. It is a lottery as to how your opponent will engage in the litigation process including the pre-action phase.

Recently, I have been surprised by the response from two different trusts in two potential claims which share similar circumstances.

Specifically, I am currently acting separately for two women. Each sustained a third-fourth degree perineal tear during the delivery of their baby at a different trust. Each trust carried out their own investigation and both were critical of aspects of the care provided.

Given the outcome of the trusts’ investigations, I wrote to each trust inviting them to make an admission of liability and also, to request a full copy of the medical records.

Trust A has instructed solicitors who are carrying out an investigation and will be providing a substantive response.

Trust B initially ignored my invitation to admit liability and just provided me with the copy records.

When I sought clarification from Trust B about whether they would be making an admission, I was informed that they were not empowered to make an admission of liability in matters of clinical negligence, however, once the Claimant was in a position to serve a formal Letter of Claim, they would report it to NHS Resolution (NHSR) who would carry out an investigation. This was a disappointing and confusing response given the experience I had with Trust A and the NHSR’s own reporting guidelines which suggest that Trust B should have already notified the NHSR of the potential claim.

In an era when claimants, particularly their solicitors, are being criticised about the costs incurred in investigating clinical negligence claims and bringing them to a successful conclusion, it is disappointing that in some cases, potential claims are not reported to the NHSR when they should be, thus robbing the NHSR of the opportunity to make an early admission and reach an early resolution before substantial costs are incurred.

In this particular case, it seems that I have no choice but to incur the costs needed to investigate liability fully and draft a Letter of Claim. Should the claim succeed, I hope there will not be too much quibbling over the bill.

More importantly there is a human cost. People have been injured through medical negligence and in some cases those injuries are severe with lifelong consequences which impact not only the injured people but their family and the community around them. Engaging with the legal process at an early stage not only benefits the taxpayer and the government’s purse, but also helps claimants to obtain access to justice in a timely way so that they can be compensated for their losses and get the support and treatment that they need.