Andrew Harrison is the one of the leading clinical negligence lawyers in the North West, with a particular and well-deserved reputation for his work as a specialist in the field of breast cancer misdiagnoses in which he is an acknowledged expert. Here he shares his recent experience as a patient in A&E and asks: should there be a review of the current Personal Injury Awards and Settlements figures?
I recently had cause to enjoy five hours in A&E. That’s a curious time for a medical negligence lawyer. I don’t believe for a moment that my treatment would differ if the staff discovered my occupation, but you can bet there’d be a hefty dose of sarcasm. And why not? In their shoes, I would. Ah, the enemy, give them both barrels. That’s a one-way street, by the way, medical negligence Claimant lawyers don’t hate doctors, not one bit.
A few things occurred to me during this undercover excursion. The people who didn’t need to be in A&E. Consent. How young doctors are nowadays. Infuriating car park machines. Damages. Damages stood out. The question that I asked myself, for something to do, was whether it is enough. It was a bit of a fox in the henhouse scenario, damaged lawyer sitting in hospital thinking about money, but a little reflection on such matters is healthy. After all, tomorrow I will be asking for money for my clients, why not reassess my views while I’m here.
Damages are the end result of a successful medical negligence claim – money. It is not necessarily widely appreciated, however, that damages are made up of several parts. Only one of them is money that results from the injury itself, directly. This is the bit that is actually compensation. We call it general damages, or PSLA – pain, suffering, loss of amenity. The rest of the claim is financial loss in some form or other, and repays you for money lost or due to be spent. None of that is anything other than a refund. The PSLA part, on the other hand, is money given to you to make up for the pain and suffering you endured. It is usually not a huge amount of money.
In any case there is, at some stage, a conversation between lawyer and client about how much it’s worth. Often there is a query about why the PSLA figure is so low, and usually I would ask someone what they would set it at. Of course they don’t know. The truth is, however, that we don’t know for sure either. Your solicitor does not set this figure, we work out what it should be, but we don’t create it. We work from three main resources when we assess quantum. Quantum is fancy lawyer-speak for “amount.” I don’t know why we call it that, really. We could just as easily say “value.”
Judicial College Guidelines
The first source is a set of guidelines. Online these days, but you can still buy a book. They’re called the JC Guidelines, JC standing for Judicial College. For claims that involve an injury, this tiny bible is in every solicitor, barrister and judge’s hand at some point on most days. It is written by a collective of very large brains, and then sent down from on high like the biblical stone tablet, and we all work to it. There is a range of figures in there for most injuries, with a scale for how severe each one is. We, as Claimants, spend our lives trying to persuade everyone that the injury is higher up the scale, the Defendant argues the opposite.
The second source is caselaw. Every case that ends in money as a result of a judgment gets a writeup, and we can see them all. Those that don’t reach trial can still be written up by those involved, and published in some form or other. The end result is a huge resource of cases to compare yours to. As above, I want the one that gives the highest figure, leading to a lot of “it’s like this one here, only worse, because…”
Third is experience. That gut instinct from years of doing the job that leads you to say “I think it’s worth about X.” Generally, that ends up being about right, but you then have to find the resources from the first two to prove why you think it. And sometimes you cannot, the number feels wrong. Those are the hardest cases, because instinct after 20 years does not tend to take you far wrong, and if there’s a clash between what you expect and what you find, you need to work out why.
Damages are too low
So, sitting there in A&E, what was the conclusion? Well, simply that damages are too low. You can’t give me enough money to make this okay. I think that’s a general feeling for all lawyers, even on the Defendant side, but it’s not very helpful. Whatever it is, someone will say it’s not enough. The more twisted souls will argue that if you can’t give someone enough, why bother at all?
The question I therefore asked was “what would I pay, right now, not to be in this position?” A lot. Take my card, charge whatever you want, it really hurts and I don’t want to be here with my face burning and one working eye, worrying if I’m now half blind for life and with literally nothing I can do about it. Have one of my kidneys and the mortgage too, if you can make this have not happened.
But that’s the voice of desperation. A week later, with fresh pink skin on the face and both eyes back to normal, what would I pay not to have been through it? Well, nothing like as much, because my perspective is radically different now it’s over. It wasn’t fun, but I’ve already forgotten how bad it was.
So, how much would I get?
Apply those JC guidelines, and the caselaw, and what would I get for a 1-week burn injury with no long-lasting consequences?
The answer is very little, actually. It didn’t last long enough to be worth a lot. And as serious as it was to me at the time, when you write it down afterwards it’s trivial. We assess injuries based on medical reports that do exactly that, they turn injuries into writing, and we turn writing into numbers. The person writing the report is far more accustomed to injury and pain than you or I, so it is easy to make that written report very dry, and to minimise the injury. Part of the lawyer’s skill is to tease out the parts that matter and add a little humanity back into the account.
So is that tiny PSLA figure I would award myself actually right? If you offered me five times the sum I’d get, and ask me if I’d do it again for that, no chance. It’s not enough to endure that first day for. Does that mean, in fact, that PSLA is too low? Well, no, because paying me to get injured is not the same thing. But the focus there is the same as many of my clients would have. It’s that initial injury, the pain, the shock of it all, that is where I think the money is wrong.
Most injuries are a lot worse than my trivial accident, and that initial period of pain and panic is quite protracted. Recovery, and then living with the injury’s after effects is important, of course it is, but that part of these claims is actually done quite well. The period of time of that acute injury, and uncertainty, before you know you’re over the worst of it and it’s now a question of coming to terms with the aftermath, and healing as best you can, that’s where the money is too low, for me. I think we, generally, as a profession, undervalue that part of the process.
In a medical negligence claim, of course, we’re looking at a slightly different take on injury, because often it’s a question of how much worse an injury is. When you claim for, say, a delay in diagnosis of cancer, then had the negligence not happened you would still have had a diagnosis of cancer to deal with. That’s awful enough. Medical reports tend to skip over, to some extent, the extra impact of being told that, in fact, a mistake has delayed that diagnosis, and that you have to now come to terms with the idea that this thing has been left inside you to spread. Moreover, the amount of time you have to dwell on this before you know what your prognosis is will be lengthy, you don’t know how much worse things are. Oncologists talk in terms of percentage chances of five, 10 and 15 year survival, but for you, 92% having reduced to 76% because of delay is largely irrelevant, because for you it’s binary. It’s survival, or not.
Assessing the amount your injury is worth
When assessing the amount your injury is worth, this period of uncertainty and desperation is not the same thing as someone climbing out of the wreckage of a car accident. They know pretty quickly if their arms and legs work. The person dealing with a delayed diagnosis doesn’t know what the damage is yet. That is a far worse situation, I would argue, and one that I suspect is glossed over all too often.
There are calls to review PSLA figures every now and then. The last one was in 2013, when there was a bump of 10% across the board. We still call this an “uplift” nearly a decade later. It’s not an uplift now, it’s just what damages are. For my money, literally, it needs at least another such boost. Don’t forget the poor devil who went through it, and what they were feeling at that time.
If that’s a lot of thinking for someone in A&E, time moves slowly there. You can only squint at the endless loop of the information screen about three times before you’ve memorised it. I’m fine, by the way.