healthcare update - issue 14
Not a leg to stand on…
This novel and significant clinical negligence claim raised a
highly technical issue – which can be summarised as the claimant
“cannot have his cake and eat it”. We were successful in a trial on
a preliminary issue, getting the claim struck out, with the
defendant Trust’s costs to be paid in full.
The claim arose from orthopaedic treatment for a broken leg,
with the claimant alleging delay in referral for surgery prolonged
his recovery. His injury had been sustained in a road traffic
accident, and early in the clinical negligence claim it became
clear that he was bringing a claim for the RTA as well, handled by
different solicitors, in separate proceedings.
The clinical negligence claim was always likely to be fairly low
value. The claimant eventually made a Part 36 offer of £10,000, but
estimated his costs (on a CFA + ATE) at around £60,000.
After our defence denied liability, the clinical negligence
claim was stayed until the RTA claim was resolved. Liability in the
RTA had already been agreed at 60/40 in the claimant’s favour. The
claimant finally accepted £36,000 gross to settle the RTA claim. He
received around £19,250 after deduction of CRU and the 40% discount
for his litigation risk /contributory negligence.
When pressed, the claimant confirmed that the RTA claim had
included all the losses and injuries associated with the subsequent
treatment, so there was no clinical negligence loss that had not
already been claimed in the RTA. He conceded that he had to give
credit for the damages received in the RTA claim, to avoid double
recovery, but argued that the 40% discount to his RTA claim left
him with a residual loss to pursue against the NHS Trust.
We argued that he had settled his losses in full in the RTA
claim, and that the claim against the NHS Trust was an abuse of
process, and should be struck out. We filed and served an amended
defence to this effect and a trial of a preliminary issue was
ordered.
Crucially, we obtained a court order making the claimant
disclose to us the full solicitors’ files of the claimant’s RTA
claim, including all correspondence and advice to the claimant,
including counsel’s advice.
This disclosure was vital, as the RTA correspondence files
showed that the claimant had been advised of the option of reducing
his RTA claim to the value of the injuries he sustained prior to
the alleged clinical negligence, and then pursuing the remainder of
his losses (without a discount for contributory negligence) against
the NHS Trust. The claimant decided to take the “bird in the hand”
which was offered in the RTA claim. In fact, his lawyers had
advised him to settle the RTA claim before disclosing his GP
records to the RTA defendant, to avoid them being put on notice of
the possibility of clinical negligence by seeing a letter from the
claimant’s solicitors in the clinical negligence claim.
We had a day at court of legal argument on the preliminary issue
of whether the clinical negligence claim had effectively been
extinguished by the RTA settlement. The Judge found that
notwithstanding the 40% discount in the RTA claim, the claimant had
accepted a full settlement of all his losses. There was no loss
that had not been claimed and settled in that action, and certainly
the RTA defendant would not have been expecting the claimant to
then go after the NHS for some further compensation, giving the
Trust defendant the right to re-join the RTA defendant to
proceedings to argue for a larger contribution to the overall
damages.
There was, therefore, no remaining subject matter to the claim
against the NHS Trust. The clinical negligence claim was struck
out, with the claimant (or his insurer) having to pay both his own
costs, and the defendant Trust’s in full.
talk to us
save to PDF
The content of this update is provided for the purposes of
general interest and information. It contains only brief summaries
of aspects of the subject matter and does not provide comprehensive
statements of the law. It does not constitute legal advice and does
not provide a substitute for it.