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Scottish clinical negligence cases: the importance of detailed and objective risk assessment

By David Stoker, Senior Underwriter

(Estimated reading time: 3 minutes 9 seconds)

Here at Temple, we share a combined 100 years’ experience of underwriting clinical negligence cases and wanted to share some of that with you. You are the experts, we know that, but we hope to add value to your decision making and save you a great deal of time and costs.

We’re here to help, not to second-guess you. You may well be equally experienced, but having seen a great many clinical negligence cases, there are three key insights to begin with, namely –

  • Many cases are discontinued far too late – this causes a higher claims exposure, benefiting nobody.
  • We see many more cases stalling due to inadequate case timetable management. Too much time is spent identifying appropriate experts, followed by long delays in obtaining the experts reports – without ever having a ‘Plan B’ in place.
  • Too much time and money is also spent trying to turn an unsupportive expert around. If the answer is not ‘yes’, then the case is probably a ‘no go’.

The client isn’t always right

The rise in clinical negligence ATE insurance claims has often been due to accepting subjective evidence from the client alone. This is not a good risk assessment. We require a law firm to obtain all relevant medical notes and records and review them. This is one of our Eligibility Criteria before a case can be insured under delegated authority.

The Risk Assessment should demonstrate objectively why the case was taken on. Reviewing your rationale can give insights you, your client and your ATE insurer could all benefit from.

Overview of the key principles for effective risk assessment for clinical negligence cases

This list is by no means a comprehensive list but adherence to it will, we suggest, lead to less time being written off and reduce claims, including the amount of the monetary claims.

Review your current risk assessment procedures – measure their robustness against case success/loss data.

1.Implement constructive changes – if you spot a weakness in those procedures.

2.It’s good to share – include your ATE provider in those reviews to develop a dialogue.

3.Record your risk assessments properly – and follow up on the actions identified.

4.When a claim has to be submitted to your ATE insurer – do explain the reasons why prospects have reduced.

5.Do go back! Revisit your assessments and close cases down as early as possible if prospects fall.

6.Do not rely on Counsel alone – it’s your case, not theirs.

7.Create a work ethic – one that encourages review and reappraisal of prospects of success amongst your fee earners. Record your findings.

8.Budgets – do you calculate your disbursement spend and work in progress (WIP)? If appropriate, set WIP limits on different types of cases.

9.Checks and balances – have these in place until you are confident all the relevant facts and evidence are available to confirm the merits of a case.

10.Keep records of successes and failures – and liaise with your ATE provider, who should give you data to show whether you are ‘the right side of the line’.

11.Fraudulent misrepresentation – warn your clients, especially the self-employed, of the risk of allegations of fraudulent misrepresentation being made against them – for example if their dealings with HMRC or DWP are not 100% honest.

12.What goes online may stay online – also warn your clients of the risks of their social media posts being examined by the defendant to seek evidence of dishonesty.

In summary – aim to develop a detailed risk assessment process backed by objective evidence and, ideally, a separate case plan setting out defined goals with a strict timetable.

If you can confidently say that all the risk assessment best practice from this guide is happening, you should be seeing healthy wins statistics and few claims. If not, please call 01483 577877 or email david.stoker@temple-legal.co.uk

We are only too happy to work with you to create a more robust process.

David Stoker

Senior Underwriter
Read articles by David Stoker

David Stoker

David joined Temple in August 2015 having previously been an underwriter for another ATE insurance provider for nearly 9 years dealing with all aspects of personal injury work.

David’s experience allows him to undertake a key role in Temple’s ATE insurance personal injury and clinical negligence teams. He also participates in the assessments of delegated schemes that Temple provide with the objective of helping our customers make the most of the products and services Temple has to offer.

David has a LLB honours degree in law and also completed the Legal Practice Course at Guildford College of Law obtaining a commendation. He has worked as a personal injury case handler for 2 firms of solicitors post-graduation before moving into LEI.

 

Read articles by David Stoker