Low Value, High Impact: Access to Justice in Clinical Negligence

Episode one features Katherine Pearce, Head of Medical Negligence and Personal Injury at Davies and Partners Solicitors and Emma Wilson, ATE Account Manager, ARAG.  

Women in Clinical Negligence explores the issues shaping clinical negligence today, from the gender pain gap and access to justice, to the women driving change within the law. Through expert insight and real-world discussion, the series asks where the system has fallen short and what needs to change. 

Transcript

– Welcome and Speaker Introductions

Emma Wilson 0:09

Welcome everyone to the ARAG podcast. My name is Emma Wilson and I'm an ATE account manager at ARAG. Today we're going to be talking about clinical negligence claims and talking to Katherine Pearce, who is Head of Clinical Negligence and Personal Injury at Davies and Partner Solicitors. Welcome along, Katherine. It's good to have you here. Thank you for having me.

Katherine Pearce 0:30

It's great to be here.

Emma Wilson 0:35

So, Katherine, how long have you worked in clinical negligence and what kind of work do you see most in that area?

Katherine Pearce 0:43

Well, I'm second career solicitor. I started life previously in the NHS and then came to law later. But I've spent over 16 years working in clinical negligence, mostly handling complex cases involving neurosurgery, neurology, birth-related and baby loss claims. They're the ones that I see most on a day-to-day basis, and probably where my expertise is most developed. And my personal interest in neurosurgery and neurology cases started after I had my son who's got hydrocephalus and he's undergone multiple brain surgeries. And so I've seen first hand the impact of how injuries in those areas can can impact children and their families. And so it probably deepened my interest in wanting to make a difference in those areas.

Emma Wilson 1:36

Yeah,

– Access to Justice in Clinical Negligence: What’s Changed

Emma Wilson 1:37

Well that that's completely understandable. Thanks for sharing that. So today we're going to be looking at access to justice, really, and how that landscape has changed and is changing all the time. When did you start noticing the ground shifting on access to justice? And how has this changed for the average person who's now trying to bring a claim in clinical negligence?

Katherine Pearce 2:00

I think the shift started really quite some time ago, probably eight, nine years You know, there was a there was a change in terms of kind of risk assessing cases when fixed recoverable costs first came on the agenda in 2017, maybe even before that, and I think we started future-proofing our business at that point, really, and looking at what the potential value of claims were then. I suppose it's it that agenda's become become much more advanced, and and obviously with the fixed recoverable cost regime when it came into play in from October 2023, really, is when there was a significant shift, and perhaps more later where when the case law narrowed around who potential claimants might be. So thinking about kind of secondary victims and things like that. So yeah, I mean, for many ordinary people, I think hurdles have quietly increased, really. The industry has been saying for a long time that fixed costs in inverted commas lower value cases risk restricting solicitors' ability to meet the standards that you need to to adequately investigate a claim and can make legitimate, low-value but complex cases uneconomic to run, is is the is the stark reality of the position, really.

Emma Wilson 3:27

Yeah,

– Fixed Costs, Fewer Claims and Barriers to Redress

Emma Wilson 3:28

I can see that. When people say access to justice is eroding, which is something we do here - what do you think that actually means in real terms for claims? Does it mean fewer claims, fewer lawyers able to take the cases, or low and lower compensation for the claimants themselves?

Katherine Pearce 3:50

I think all three of those pressures show up. You know, firstly, fixed costs can deter firms from taking complex but low, low value cases in the first instance. I think you've got pinch of of capping expert fees and expert input, and the kind of process constraints that fixed recoverable costs can put on limiting the quality of the investigation that you can carry out. And you know, the Law Society was warning against that from 2019, and then and then you've got the recent decisions that have come through that have narrowed certain character categories, so secondary victims again, where it's just reduced the routes to redress for families who have witnessed traumatic circumstances in in those cases. So there are there are less types of claims, is the effect. So you can see that that the three things that you know you talked about fewer claims, yes, because they're less viable to take on, fewer lawyers able to do them because you're not taking them on because they're not viable, but also because it would be compromising to the quality of investigation and and lower compensation because you're not able to value them in the same way with the same level of rigour that you would ordinarily have done. So I think all three.

Emma Wilson 5:17

Yeah,

– Secondary Victims After Paul v Royal Wolverhampton

Emma Wilson 5:18

that's understandable. You touched there on secondary victims. There last year there was a Supreme Court in Paul versus the Royal Wolverhampton NHS Trust, and that addressed secondary victims' claims in clinical negligence. What have you seen has been the effect of that?

Katherine Pearce 5:39

Well, I mean the the reality is that the the effect has there are no secondary victim claims in practice anymore, with very, very few exceptions. So the court with a six to one majority held that that those witnessing a significant injury to another person close to them can no longer bring a claim for their psychiatric injury unless what they witnessed qualifies as an accident tantamount to a to a that that you'd see in a personal injury claim or its immediate aftermath, and it confirmed that clinicians don't there's there's no duty of care owed to to those people witnessing that. The effect is that those claims have in all but v the very rarest of cases, and and you know we can talk about that a bit more, but they've gone really, and and there's a significant proportion of people who will suffer as a result of that because because their injuries can't be compensated.

Emma Wilson 6:47

Yeah, it has actually had quite a large effect, hasn't it, on on who can claim? In your experience since that judgment last year, who has been most by that? Is it parents, partners, children, or wider family members that would have claimed in the past that now that now can't?

Katherine Pearce 7:08

Well, I mean i it's the close closest family partners, parents, children who witness a significant injury or a death attributed to the earlier negligence. I mean, post the Paul case, most of those claims will fail because the event is not treated as an accident. I had significant background, particularly as I was training and working with families who have experienced baby loss, and from my perspective, this has had a really significant impact on fathers, and it just feels like an anomaly, really, and a travesty to an extent that somehow, despite being 50% of the baby's parentage, somehow or other, there is nothing, there is no comeback, there is no redress for fathers, and that they're not owed any duty of care in relation to harm caused to their either unborn or or born child who dies shortly after delivery. It certainly had a major impact. I you know, trying to explain that to clients, to it to a father who has been equally impacted by the loss of their child. And it's a real shame really that that that there isn't a carve-out in those circumstances because because of that nature of both people are parents, why there is there isn't a carve-out for for fathers in that circumstance. And I think I think that's a real access to justice issue.

Emma Wilson 8:39

Yeah, I think some people were hoping that that that would have been the case, wasn't it, that under those circumstances it would have been it would have been a different outcome, but it it hasn't been, has it?

Katherine Pearce 8:52

No, and and I think I you know the the Paul Polmear and Purchase cases that were taken on appeal, you know, they all had different facts. None of them, none of them involved those specific set of circumstances in relation to baby loss, and you know, those firms and the insurers and the council that took those cases, you know, that was a brave decision to to make to bring clarity to a position that had been grey for some years by the time it got to appeal, you know, but it was a shame that that carve-out it wasn't able to be kind of delineated. It would have been interesting to have seen what the court would have said, but it wasn't, and we're here and and you know, all admiration to the parties that took those cases on appeal.

Emma Wilson 9:35

Yeah, absolutely. Um do you think the poor case does it reduce accountability or does it just narrow who can now claim?

Katherine Pearce 9:45

It does both. It narrows who can claim, and in my view, it reduces system accountability. The accident requirement is kind of conceptually problematic in my view for clinical negligence because there in most cases will always be a gap. It's not in most cases possible to witness the negligence in itself. It's the outcome as it materialises is what may well be tantamount to an accident, but but the proximity point is what's been decided, and it it highlights a tension between kind of legal doctrine and and the real-world trauma that is experienced when when somebody witnesses something like that. But that's the law, and that's how it works, and that's how it it develops and and you know lives and breathes as as we go through. And yeah, I mean in a way there is there is a reduced accountability, and it does narrow who can claim.

– Why “Low Value” Does Not Mean Low Complexity

Emma Wilson 10:50

Yeah. Turning now to fixed recoverable costs or FRC as we know it, what's the real-world effect of fixed costs, in your opinion, on whether solicitors can run certain clinical negligence cases now?

Katherine Pearce 11:11

I think it's pretty significant. Fixed recoverable costs make many lower value cases, which are often technically complex, economically difficult to take on, you know, query the viability that it's interesting because the the lower value cases are not intrinsically less complex. And this is specialist work, and and experts are squeezed, and it just risks underprepared claims or not full investigation or representation at all, and that is the reality. And I'm sure that there are you know really big firms are looking at at ways of trying to make these claims viable, and I really hope that there is a solution, it's much more difficult. I mean, we're a smaller firm in the in the compared to many, and it's really difficult to see how you can make it economically viable. I'm sure that there are cases that we will take on because it's the right thing to do, but the the scope to be able to do that is is significantly limited. I mean that there's an irony as well, really, that the the very the the lower value cases that are less than £25,000, there's that they're almost more economically justifiable than than the those above £25k but less than £100k. And there are exceptions, like there are ways of those cases coming out. It's not that all cases, you know, less than £100,000 are not viable. It just makes it much more difficult. And when the circumstances arise that you that you would be making those risk-based decisions, those people are not getting access to justice because it isn't economical to investigate them. And that's that's the stark reality.

Emma Wilson 12:54

No, it's it's sad, isn't it? We hear the the label low value, don't we? In terms of low value can equate to less complex. But would you say that the the label low value is somewhat misleading in clinical negligence then?

Katherine Pearce 13:12

Yeah, completely. V alue in this sense is it means damages. It's got no relevance to complexity or importance to the parties, the claimant, you know, to me this appears to be contradictory to to the overriding objective in the civil procedure rules, you know, that places the importance of o the issues to the parties at an as an equal pillar to the cost. But there's a real risk that by thinking that cost is the factor, that those complex cases that that need answers that will improve patient safety and learning won't be learned. They're not less important to people who have suffered injuries.

Emma Wilson 13:58

Yeah, absolutely. So yeah, I can see where you're going with that. Talking about going further from talking about alternatives to fixed recoverable costs, what do you think would work?

Katherine Pearce 14:13

That's a big question, isn't it? I'm not sure that - to opine on that is - is pretty significant. I you can see that that the theory of having fixed recoverable costs could work in in less complex cases in many ways. But there would need to be uplift for complexity, having multiple experts and causation disputes. And I know all of those things in in many ways are provided for in the fixed recoverable cost regime to an extent, but at the outset of a claim, when you're looking at the risk, what you're looking at is whether you can get answers for your client in a way that is commercially viable. So really there is there is the potential scope, but the the costs for the fixed costs need to be realistic, they need to be they need to be relative to the complexity as opposed to the value. To go further than that, I think would be there's probably people far, far better qualified than me to to be able to look at what the potential alternatives are, but this doesn't feel like it's necessarily going to achieve the aims which it sets out to do. It may well reduce costs because the cases won't run, but that has a substantial impact on access to justice. Yeah. And and we need to be more creative, you know, insurers need to take risks. If we're going to take the risk, insurers need to take the risks too. Um, I think to look at maybe thinking of different and creative ways of of supporting the funding of the cases. And I don't know what that is, and that's way beyond me. And I'm sure that ARAG will come up with the options in due course.

Emma Wilson 16:15

We are always looking at at ways to support our firms and and their clients. We have to as well be creative with a changing landscape, don't we? We all do.

Katherine Pearce 16:26

We all do.

– Patient Safety, Learning and Accountability

Emma Wilson 16:32

Another important aspect is patient safety, really, patient safety learning, you know, what lessons are learnt. Should redress be built to drive learning, really? How important is that?

Katherine Pearce 16:47

I think it's crucial, isn't it? I mean, we can see that from the multiplicity of maternity investigations that have taken place over the last 10, 15 years. F rom the current fast track national maternity review, you know, there is there are priorities around learning, there are priorities being placed around system changes, the implementation of them is what we're not necessarily seeing, and maybe why we keep having to have them. But without learning, the same patient safety issues will just keep on repeating. And you know, as we've seen in the maternity space, you know, we we learn lessons, we see changes, there are recommendations, but but this it you know we can't underestimate the pressures that the the system is under and the cost of of doing that. But if you're investigate and if you're going if you want to learn, then then there's got to be investment in that. And I don't think that investment is necessarily gonna be achieved by cutting lawyer costs from from a one lens. And you know, if claims become harder to bring, we lose early warning about unsafe care. You know, when billions are paid annually across the NHSR indemnity schemes, the smarter long-term lever is improving safety. We've been saying this for years, but it's also openness and learning first rather than just compressing the litigation costs.

Emma Wilson 18:30

Yeah. So we were talking earlier about complexity, not always equating value. Can you expand on that, particularly in relation to baby loss cases?

Katherine Pearce 18:48

Baby loss cases are a stark example at the heart of it. For me, they're the clients who've experienced baby loss are so impacted, it's really devastating. And low value tells you nothing. I mean, we touched on this earlier, and it tells you nothing about complexity. B aby loss cases are not low value cases, they don't necessarily fit in the in the fixed recoverable costs regime, but they could. And I and you know, many of them will be with within the for fixed recoverable costs, but they are clinically in intricate and they're expert heavy. The irony being that's the reason why they may well come out of the of the regime. You know, and when you look at all of this, the the trying to cap the number of experts, trying to trying to limit the evidential base, it does it risks lowering standards in in precisely these cases where the the impact is so so significant. And in a baby loss case, the the liability issues are generally as complex as in a multi-million pound birth injury claim. You know, but the baby dies rather than surviving with devastating injuries. The value doesn't make that liability those liability investigations and the issues any less complex. It just makes quantifying the case slightly less so. The damages label in a baby loss case can be small, but the investigation is exacting. It's records, timelines, pathology, multidisciplinary opinion. While the importance to the to the family is absolutely immeasurable, you know, calling these cases low value is deeply misleading, and and rigid fixed recoverable costs risk under resourcing the very scrutiny of these family needs, but also the lessons that need to be learnt from them. And and we can learn as many lessons from the liability issues in baby loss cases as you can in in birth injury cases that are going through the early notification scheme or or being you know having the benefit of a an MNSI investigation. So there is learning to be had here, and and you know, and I know some of them will potentially fall into the MNSI investigation category, but but there is learning to be had, and and that, you know, as we talked about earlier as well, it that impacts the the patient safety landscape. P atients and and families want answers. They they don't want this to happen to anyone else, and they want to know what happened to them. And without the thoroughness of that investigation, then which is complex and can be complex, is is it risks undermining all of that. I mean for me, I which again we talked about it earlier, or I mentioned it earlier. The this is where the overriding objective matters. The civil procedurals require cases to be dealt with. With justly and proportionate cost, but including having regard to the importance of the case to the parties, it's not just about the money. And in baby loss litigation, that importance is at the highest. Families want answers, accountability, and learning to prevent recurrence. And fixing costs too rigidly can really undermine that principle in practice, from in my view.

– Children’s Lost Years Claims: A Positive Step

Emma Wilson 22:28

Yeah, I can see that. Further on, talking about children's claims, there was a recent positive Supreme Court ruling with regard to children's lost years claims. That was CCC and Sheffield teaching hospitals. Could you tell me a little a bit about that and what does it mean for claimants now?

Katherine Pearce 22:58

Well, I mean it's a landmark decision and huge credit to the legal team that that leapfrogged it to the to the Supreme Court. I think the clinical negligence practitioner sector has been has been long hoping for this. And you know the Supreme Court has held that children can recover lost years for further damages, the earnings they would have made in the years of life lost because of the negligent injury, and this overturns the old rule from croak and and puts child cases in tandem with adult cases, which has long been the position in in that regard. So it brings parity. You know, the court stressed that this is the child's own loss, it isn't dependent on having future dependence, and that's important. It's a really, really positive decision.

Emma Wilson 24:01

Yeah, it absolutely is, and it's brought it into line with what was already in existence for for adults who've been harmed. Do you think though that this expands access to justice in a meaningful way? The judgment was only very recent, it's very early days, but what are your thoughts on that?

Katherine Pearce 24:26

I think it does. I mean, access to justice isn't just about it isn't just about accessing legal sport, is it? It's also about accessing life. Um and you know, it recognises that a child's future has real economic value and it you know, as we've as we both have said, it aligns children with adults, correcting a long criticised disparity from the claimant side. It's you know, getting access to justice isn't just about you know, you know, we work in terms of quantum and compensation, but it it you know what we're really doing is putting people's lives back to what they deserve to have. It it it you know, we can never take them back, we can never give them 100% justice, can we? We can't ever take their injuries away, but what we can do is make things better. It sounds a bit trite, doesn't it? But but this is what this does. This is right, this is about saying children and adults are have equal access to compensation in this regard for lost years, and that's an important thing.

Emma Wilson 25:38

Yeah, I agree 100%. Obviously, we've got that, you know, obviously with the cost reforms pulling in one direction, and then we have the law correcting unfairness in another way. Does it feel like in some ways there there's a push-pull, they're pulling against each other in in some aspects?

Katherine Pearce 26:04

Yeah, exactly that. I you know, at a time when all eyes were on clinical negligence costs, you've got public accounts committee, you've got the David Lock KC review of costs, fixed recoverable cost regime in for for the the £25,000 to £100,000 regime, and then CCC widens the substantive rights of children to to enhance their damages rightly in parity with adults. You know, there is a there is a friction between this position of making of of fixed costs making complex cases uneconomic to to investigate and at the same time increasing the the the potential value and compensation rightly for lost years in in in cases involving children who have been injured and it it sits uncomfortably that they're at just juxtaposition with each other and and you know at some point or other there will need to be some stabilisation of that, I guess.

Emma Wilson 27:19

Yeah, I I agree, it's quite often the way, isn't it? Um in law that these things don't always go hand in hand, they will go the push one way, then push another way.

Katherine Pearce 27:30

I don't know what film it was where they say when one door one one door closes, another one opens, it does feel a little bit like that at times.

Emma Wilson 27:38

Yeah, it's ever changing, isn't it? And and that is how the law should be as well, really, that it is ever changing and evolving. It just doesn't always evolve in the way that we would like it to evolve, but sometimes you know those things do go in in claimants' favours, and that's a positive, isn't it?

Katherine Pearce 27:55

Indeed.

– The Future of Access to Justice and Closing Reflections

Emma Wilson 28:00

One last question for you, Katherine. If you could change one thing tomorrow to protect access to justice for your claimants and future claimants, what would that be?

Katherine Pearce 28:13

That's a big question. Um well, this is a women in law, women in clinical negligence podcast, isn't it? So let's kind of thinking about it through that lens. Many of the clients we act for are women, mothers injured in childbirth, primary carers managing lifelong consequences of avoidable harm, people trying to like daughters, partners trying to piece together what went wrong in a loved one's care. I think when the economics of bringing a case become too tight, it's it's these families and and and the women in them that that feel the impact potentially first. Um I'm cautious of saying this, but I'm I'm taking it from the perspective of the women in clinical negligence viewpoint. I think what worries me is that there is a kind of slow erosion that we're already seeing. Clinical negligence work is complex, it's expert-heavy, it's high risk. And if the funding environment doesn't properly reflect that reality, firms will become more selective and some really valid cases never get investigated at all. You know, and access to justice doesn't just disappear in dramatic ways, it narrows quietly at the edges. And women, particularly those already carrying caring responsibilities, often bear the brunt. And from a women-in-law perspective, I suppose there's another layer. It's a sustainable funding model is what allows specialist claimant teams, many of them led by women, to continue to doing this emotionally demanding and socially critical work. And if that work becomes economically unviable, the system loses not just claims but expertise and diversity and lived understanding. So for me, protecting access to justice means ensuring that the funding and cost framework genuinely reflects the complexity and risk of this work, but also still promotes efficiency and proportionality. Because if we're serious about fairness, accountability and patient safety, the path to justice has to be realistically open to the families who need it the most.

Emma Wilson 30:34

Oh, that was excellent summary, Katherine. Thank you so much. You really provided a clear, compassionate tour through how law and caste shape real world access to justice today. So thanks so much for joining us.

Katherine Pearce 30:48

Thank you for having me.