Fixed Recoverable Costs in lower value Clinical Negligence claims

The Department of Health’s consultation on FRCs in lower value Clinical negligence claims ended on 2nd May 2017.

If implemented in the form which the Government seems to wish, bearing in mind what the consultation document indicates as “preferred” options, the changes are likely to have an effect on the ability of some people who have suffered dental negligence to obtain the assistance of a solicitor to take on their case. This is because the costs recoverable by a solicitor, even when working under a “no win, no fee” type of agreement where some of the claimant’s damages are also payable to the solicitor, may make dental claims uneconomic unless they are for damages greater than £25,000. Many dental negligence claims fall below this value, but are nevertheless legitimate and deserving.

One of the particularly draconian proposals is the capping of recoverable expert fees.  The reason why this “cap” is unreasonable is that it appears that an expert would be expected to sign up to work on a case for a fixed fee when the amount of work which they will have to do is unknown.  Work does not stop at preparation of an initial report or reports which themselves can take many hours and often include a clinical examination in a dental surgery, with the costs and overheads this implies. Further work may than require responses, often on multiple occasions and in some considerable detail, to questions posed by both parties to a dispute, a conference with a barrister, one or more joint experts’ meetings and preparation of a joint report, and attendance at a contested court hearing to give evidence and usually to assist the barrister during cross-examination of the expert or experts instructed by the opponent.

The alternative is that the solicitor instructing the expert would be expected to fund the “excess” expert’s fees over and above the “cap” out of the overall recoverable costs.

Given the daily cost of running a dental surgery, it is not difficult to see that it may well be uneconomic for a dental expert to take on this type of work. Yet without expert evidence, which will have to be disclosed to the dentist at a relatively early stage, a claim will not be able to be made in the first place.

It cannot be conducive to prevention or redress of health inequalities to put such obstacles in the way of someone whose health has been damaged by a negligent act.  They should be able to put themselves in a reasonable position to remedy the situation.

Dental claims, even relatively low-value claims, can and frequently are  complicated by their nature – see  more by clicking here.

We now have to wait to see the outcome of the consultation.

As a barrister specialising in dental matters with my background as a dentist, I can assist with assessment of a potential dental negligence claim, and advise members of the public under the direct access scheme in relation to what professional assistance they may require.

Contact me at h.beckett@goldsmithchambers.com or contact my clerk at clerks@goldsmithchambers.com .  Telephone 0207 353 6802.

 

Small Personal Injury and Whiplash claims – the end of the road?

A briefing paper has now been published by the Commons Library which considers the small claims track financial limit in respect of personal injury claims and proposes increasing it to £5000.  It also proposes removing the right to general damages for minor soft tissue injuries – in other words, compensation for whiplash if you are involved in a rear-end shunt.

The general thinking appears to be that it should not be necessary for a person with a personal injury claim worth less than £5000 to employ a solicitor or barrister to help them with their case.  (Currently, the limit is £1000.)  If your claim for personal injury is less than this and you choose to employ a solicitor or barrister, even if you win your case you can only claim back a really small amount (it’s currently about £70-£80 typically, but we don’t know what it would be if the limit rises) from the other side.  This does not usually cover your legal costs.

What the briefing paper seems to be saying is that the Government thinks that most minor injury cases are sufficiently straightforward for a non-legally trained person to be able to manage bringing their case themselves.

What they don’t point out is that if you do not have specialist legal knowledge, you may not know about what you can actually claim for, so you may not realise that your claim is worth more than the small-claims limit anyway.

The other side of this is that your opponent may well be a large insured or insurance company, with plenty of resources to employ claims handlers, solicitors and/or barristers to defend a claim.  Just because the value of a claim is small does not necessarily mean that it is unimportant to the person claiming, or the issues involved are really straightforward and they are unlikely to point out to you that you could claim for things you haven’t thought of.

So some people with a genuine personal injury claim might be put off even starting.

With whiplash claims, the idea seems to be that motor insurance premiums may be able to fall if insurance companies are not at risk of multiple  claims for whiplash in minor road traffic accidents.  However, there is concern from some quarters that insurers would not pass on any savings in insurance premiums anyway.

You can read the briefing paper here  small claims

It is possible for members of the general public  to approach a barrister directly, without having to go through a solicitor.  This can be an efficient and cost-saving way to obtain, for example, advice on the merits of your  claim or how to go about bringing your claim yourself is what you need, or if you need someone to represent you at specific times only. Information about how the Public Access scheme works from the client’s perspective is available here and also here.

Contact me at h.beckett@goldsmithchambers.com or contact my clerk at clerks@goldsmithchambers.com Telephone 0207 353 6802.

 

 

 

 

Duty of Candour

The General Dental Council, along with all other  eight UK healthcare regulators has now published its guidance on “Duty of Candour”.  The guidance takes effect from 1st July 2016 and therefore becomes part of the “Standards for the Dental Team”, regulatory standards for dental care professionals.

The GDC has chosen to describe the duty of candour in its guidance as “Being open and honest with patients when something goes wrong”.  Quite properly, in my view, it explains that this description provides better clarity of meaning.

The GDC makes clear that telling a patient about something that has gone wrong and apologising is not the same as admitting liability.  This has long been the view of the indemnity providers also. It is important to remember that just because a dentist has said sorry to a patient this does not automatically mean that a negligence claim will be successful.

Likewise, if a dentist has breached their duty of candour, it is important to remember that breach of this regulatory standard does not necessarily lead to loss, sufficient to found a negligence claim.  As ever, all the pieces required, breach and causation, must be present. So once again, it is important to make sure the correct standard is being applied for the cause of action alleged.

You can read the GDC’s advice to accompany their guidance here  and the guidance itself here .

Contact me at h.beckett@goldsmithchambers.com or contact my clerk at clerks@goldsmithchambers.com Telephone 0207 353 6802.

 

Direct Public Access to a specialist Dental Barrister

It is possible for members of the general public seeking legal advice or representation to approach a barrister directly, without having to go through a solicitor. In an appropriate case, this can be efficient and save costs. Information about how the Public Access scheme works from the client’s perspective is available here and also here.

I am a Public Access qualified barrister. I am also a registered Specialist in Restorative Dentistry and I have extensive experience in general and hospital dental practice.  I can advise you on your potential dental claim, what you can do for yourself and the professional assistance which would be in your best interests. I can then assist you accordingly with appropriate aspects.

Contact me at h.beckett@goldsmithchambers.com or contact my clerk at clerks@goldsmithchambers.com Telephone 0207 353 6802.

Mediation in dental negligence claims

Whilst most dental negligence claims settle without reaching court, negotiation can sometimes become “deadlocked”.  Mediation can, in selected cases, be a valuable ADR method to bring about a successful resolution or at the very least narrow the issues.  It can also create innovative solutions, cost savings and a speedier outcome than protracted litigation in the right case.

A party which unreasonably refuses to engage in mediation may face costs sanctions and it is now established that silence in the face of an invitation to mediate will generally be seen as an unreasonable refusal.

I have recently been involved in two dental negligence cases which successfully employed mediation to resolve the claims.

In the first, the claimant was a “celebrity”.  Both parties were very keen that confidentiality be maintained at all times.  Mediation was the ideal solution for both the claimant and the defendant dentist.

In the second, a retired defendant rather unusually did not appear to have adequate “run-off” indemnity cover and was faced with the prospect of having to fund his own defence.  Understandably keen to contain costs, mediation provided the opportunity for a relatively early resolution with which the claimant was satisfied.

As a mediation advocate in this scenario, I am able to combine my expertise as a barrister with my detailed understanding of the dental issues, both clinical and practical, in order to represent my client during principled mediation negotiation.

 Contact Heather Beckett

Instructing solicitors are warmly invited to contact Heather at Goldsmith Chambers h.beckett@goldsmithchambers.com:

Telephone:  0207 353 6802
e-mail:  clerks@goldsmithchambers.com

 

Why dental negligence claims are “different”

A solicitor once said to me that they needed a barrister who “got” dentistry. They had a point.

For a start, there is the need to get your head around the nomenclature. There are at least three ways of tooth notation in common use in this country and that’s without the problem that arises when one of the molar teeth (the big ones at the back) is removed and another shifts along to take its place. What specific teeth are we looking at now – a first and second molar, a first and third molar, a second and third molar ? and anyway, which one of those was the one which had the treatment in question three years ago?

Then there’s the problem that, unlike with a person’s NHS GP records, dental records don’t usually follow a patient from practice to practice. So when investigating a dental claim, it’s sometimes necessary to trawl back in time.

The majority of dentists in general dental practices are self-employed, even if they are not the practice owner. That’s not always the case, but most of the time it is. So whereas it’s perfectly reasonable for a patient with a complaint to use the practice complaints policy first of all, when it comes to making a legal claim, it is most usually necessary to bring it against the specific dentist or dentists, not simply the practice.
And then there’s the problem which is like the one where you take your car for a service and it breaks down a week later due to something that the service simply could not have revealed or prevented. There are plenty of things that should be checked during a dental examination, but there are some things that simply can’t be found out. If nature lets you down a week after your check-up, it may just be one of those things.
A preliminary advice on merits from an experienced dental barrister can assist with investigating a potential claim and managing expectations appropriately.

Contact Heather Beckett

Instructing solicitors are warmly invited to contact Heather at Goldsmith Chambers:

h.beckett@goldsmithchambers.com
Phone: 0207 353 6802
e-mail:  clerks@goldsmithchambers.com

Help to get the expert you need for your dental negligence claim

Selecting the right expert, first time, is important, not only for reasons of cost and time, but it may well save having to “back-track” later.  As a barrister with experience as a general dentist, specialist dentist and expert witness myself, I can help.

In addition to general dental practice, there are a number of dental specialties registered by the General Dental Council. Some, but not all, registered specialists also have sufficient experience of general dental practice to enable them to provide expert evidence of both.

All registered dentists are entitled to style themselves “dentist”, “dental surgeon” or “dental practitioner”, and all are entitled to call themselves “Doctor”, as long as they ensure that the title is not used in a way which could mislead the public, for example by giving the impression that the dentist is a registered medical practitioner if they are not.

However, simply being expert at what they do doesn’t mean that a dentist will be the expert witness you need. Since it is very unusual indeed for a dental expert witness to actually have to give evidence in court in a clinical negligence or personal injury claim, many have never done so. An expert may have had extensive experience of providing reports for Low Value RTA claims but a clinical negligence claim is a different ball-game.   For a start, there is likely to be another expert opinion to contend with. Those experts who have had experience of providing expert evidence in regulatory matters are more likely to have had direct experience of cross examination, and with that often comes a revised and appropriately measured approach to expert witness work.

I have seen expert reports which could well leave that expert vulnerable to criticism of lack of independence, stepping outside their area of expertise and simply failing to comply with CPR 35 and the Practice Direction. I have even seen this when the report writer has undertaken training in report-writing.

As a dental barrister, I can help you identify the appropriate dental sub-specialty and assess the quality of an expert report at a draft stage, assisting with management of client expectations in the longer term.

 

Contact Heather Beckett

Instructing solicitors are warmly invited to contact Heather at Goldsmith Chambers:

h.beckett@goldsmithchambers.com

Phone:  0207 353 6802
E-mail: clerks@goldsmithchambers.com

Early advice to minimise costs in dental negligence claims

As a dental barrister, with my particular skill-set, I am ideally placed to assist you.

You cannot expect a potential defendant in a negligence claim to make out your claim for you.  A Letter of Claim alleging multiple breaches of duty which have no bearing on causation will invite a robust denial from an experienced claims handler at one of the dental professional indemnity providers.

On the contrary, a well-crafted, targeted Letter of Claim will leave them in little doubt as to whether their client is vulnerable.

It is important to ensure that the correct set of standards is being applied to avoid wasting time, costs and the opportunity to invite an offer to settle a legitimate claim at the pre-action stage.

Early advice before sending the Letter of Claim and careful framing of allegations can therefore pay dividends.  That’s where a barrister who is also an experienced registered dentist and understands the necessary legal tests can help keep costs down.  Sometimes taking this approach will avoid having to instruct an expert witness formally and the whole case can be settled without having to issue proceedings.

I can also suggest the appropriate dental expert sub-specialty, point you in the direction of experienced experts and identify areas where additional records are required if the need arises.

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Instructing solicitors are warmly invited to contact Heather at Goldsmith Chambers:

h.beckett@goldsmithchambers.com

Telephone:  0207 353 6802
e-mail:  clerks@goldsmithchambers.com