www.legal-medical.co.

uk | ISSUE 39 NOVEMBER 2009

News and Analysis for Personal Injury Specialists
Road to reform
The new RTA claims process
Protection for whistleblowers in the NHS
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19 Road to reform
Matthew Game considers the
implications of RTA claims
process reform on the medical
reporting industry
05 Leader
Looking forward to the Legal & Medical Conference
06 News
07 NHS patient safety mistakes rise
09 Negligence: doctors must confess
11 Criticism after meningitis death
07
13
15 A clinical process
A response to last issues feature about the conict between
rehabilitation case managers and claimant LAWYERS
17 Seek and you may nd
Fixed fees for low cost RTAs present new marketing challenges for
solicitors
19 Part of the process
The impact of RTA claims process reform on medical evidence
24 Longterm recovery
A special case report on the effects of late stage physiotherapy
rehabilitation following a severe traumatic brain injury
27 Speaking out
Protection for whistleblowers in the NHS
30 Client cooperation
Recover costs by making the most of your client base
17
24
regulars
features
Subscriptions
Subscriptions are available to Legal &
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News
P
reparations for the next Legal & Medical
Conference are well underway.
In the morning, respected legal
consultant Dominic Regan will be leading a
session on MoJ reforms, The Jackson Report
and the future shape of the PI industry.
Dominic will be joined by Bob Musgrove of
the CJC; John Spencer, President of MASS;
and Andrew Twambley, the outspoken head of
Amelans and InjuryLawyers4U.
In the afternoon, we will be looking at
rehabilitation practice. Carole Chantler,
Chairperson of CMSUK; and Phil DNetto,
Partner at DWF, will be considering the role and
scope of case managers in the rehab process.
Were hoping for a lively debate on the topic,
as opinions on the role (and necessity) of case
managers are wide and various.
The art of networking
We are also very pleased to announce that
Will Kintish, the UKs number one business
networking guru, will be running a session on
developing professional relationships.
Those of you familiar with Wills sessions
will know not to expect a dry lecture. An
engaging and inspiring man, Will will be
making sure that everyone leaves the
conference with a bulging contacts book, and
a lot of new friends.
The conference will be held in Manchester
this year. Well... Salford, in fact. The Lowry
Hotel is a very impressive venue, with
excellent conference facillities and some ne
bars. It should make for great fun, and a very
informative event.
To book tickets, contact the events
organiser, Claire Winstanley on
claire.winstanley@barkerbrooks.co.uk or
phone 01423 851150. Alternatively, visit
the website at www.legal-medical.co.uk/
conference . Look forward to seeing you
there!
James Ratcliff
Editor, Legal & Medical
Barker Brooks Media Ltd, Barker Brooks
House, 4 Greengate, Cardale Park,
Harrogate HG3 1GY Tel: 01423 851 150
Email: james@barkerbrooks.co.uk
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News and Analysis for Personal Injury Specialists
APIL Personal Injury
Law, Practice and Precedents
Dealing with every aspect of personal injury practice, this
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07
News
Legionnaires
deaths hospital
ned
The Liverpool Heart and Chest Hospital
has been ned 35,000 with 12,862
costs after the deaths of two patients
from Legionnaires disease.
Liverpool Magistrates Court heard
that unsafe levels of legionella bacteria
were found in water supplying showers,
baths and sinks.
The Health and Safety Executive (HSE)
later found that the hospital had stopped
testing for legionella between May 2006
and February 2007.
But the HSE was unable to say for
sure whether the two patients were
infected at the hospital, and the trust
strongly denied a link between the water
supply and the deaths.
A spokeswoman said its own
investigation found that the patients
one from Warrington, Cheshire, and
the other from the Isle of Man had
contracted the disease in their own
communities.
It nevertheless pleaded guilty to safety
breaches and putting employees and the
public at risk.
Said HSE inspector Kevin Jones: It
is almost beyond comprehension that
Liverpool Heart and Chest Hospitals
NHS Trust became so complacent about
legionella in the water supply system.
NHS patient safety mistakes rise
The number of safety incidents involving
NHS patients has risen by 12% in the last
six months, new gures reveal.
Between October 1 2008, and March 31
2009, the National Patient Safety Agency
(NPSA) recorded 459,500 patient safety
incidents.
The new data also showed that due
to mistakes and near misses, over 5,700
patients suffered serious harm or died.
The NPSA put the rise down to better
reporting.
In England, 382 out of the 392 health
trusts provided reports, recording an
overall rise of 3% in the number of errors
or near misses.
In a breakdown of the gures, most
cases 303,016 (66%) resulted in no
harm to the patient, while 122,246 (27%)
resulted in low harm.
Another 28,521 (6%) incidents resulted
in moderate harm while 5,717 (1%)
resulted in death or severe harm.
The most commonly reported incident
was an accident involving the patient
that could possibly have been prevented
(32.8% of reports), followed by errors
or near misses with treatments or
procedures (10.1%) and medication
(9.4%).
NPSA chief executive Martin Fletcher
said: More reports do not mean more
risks to patients. Indeed quite the reverse.
These data are sound evidence of an
improving reporting culture across the
NHS.
Frontline staff are more likely than
ever to raise safety concerns much more
openly.
NHS medical director Sir Bruce Keogh
said: We have learnt from industries
such as aviation that scrupulous reporting
and analysis of safety-related incidents,
particularly near misses, provides an
opportunity to reduce the risk of future
incidents.
A woman died of neglect in childbirth
because of a gross failure to provide basic
medical attention at the University Hospital
of Wales in Cardiff, a coroner has ruled.
Ifrah Hureh, a 38-year-old from Somalia,
died of an intracranial haemorrhage after
being given the drug Syntometrine to
stimulate the womb.
This happened despite the fact that
she was suffering from pre-eclampsia and
was deemed to be at risk because she
was carrying twins and it was her tenth
pregnancy.
Coroner Mary Hassell recorded a verdict
of death by natural causes, contributed to
by neglect. She dened neglect as a gross
failure to provide basic medical attention.
Consultant obstetrician and
gynaecologist Patrick Forbes said it was
a critical and unforgivable error to give
her Syntometrine while suffering from high
blood pressure and pre-eclampsia.
Said Sue Gregory, nurse director of
Cardiff and Vale NHS Trust: We would like
to reassure the public that we have learned
from this incident, and improvements
have been made in the womens unit as a
result.
Hospital neglect blamed for death
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09
News
09
Negligence: doctors
must confess
NHS staff would be made to confess
and apologise for medical negligence
under proposals backed by chief
medical ofcer Sir Liam Donaldson and
health minister Ann Keen.
According to the Guardian
newspaper, a legal duty of candour
would force doctors to admit and
explain their errors should a patient be
injured or killed.
The proposal is a result of the 807
million paid out to injured parties last
year, and the rising number of clinical-
negligence cases being brought against
the health service.
But says Sandra Patton, a clinical
negligence specialist at Kester
Cunningham John: What doctors have
never really understood or accepted
is that if they were much more candid,
explained what had happened and
what steps had been taken to stop it
happening again, many people would
never embark on litigation in the rst
place.
Ms Keen says in a letter to Action
against Medical Accidents: A culture
of openness and transparency is vital
when things go wrong in the provision
of care.
A study by the Imperial Centre for
Patient Safety and Service Quality
reveals that a sixth of patients
being treated by the NHS are being
misdiagnosed.
Patient death raises GP locum fears
The death of a patient after an exhausted
German doctor made a mistake is
prompting widespread fears about the
quality of out-of-hours GP care, says a
health watchdog.
David Gray, 70, died after being given
10 times the normal dose of diamorphine
by Dr Daniel Ubani, a locum working
his rst out-of-hours shift in Britain after
arriving from Germany.
He had admitted being exhausted
and only having had a few hours of
sleep before beginning work for a
Cambridgeshire health trust.
The Care Quality Commission (CQC)
has now investigated the private rm
Take Care Now, which employed Dr
Ubani and which has contracts with ve
primary care trusts.
These are NHS Worcestershire, NHS
Cambridgeshire, NHS Suffolk, NHS Great
Yarmouth and Waveney and NHS South
West Essex.
Says CQC chief executive Cynthia
Bower: Our visits to the ve trusts that
commission Take Care Nows services
showed they are only scratching the
surface in terms of how they are
routinely monitoring the quality of out-of-
hours services.
She raised the possibility of there
being a national problem regarding
the operation of private GP companies
working in England under NHS contracts.
4.4 million for brain-damage woman
A woman with a 10-minute memory span
after a Durham hospital blunder left her
brain-damaged has won 4.46 million in
compensation.
The action by Cristina Malcolm, 41, was
against Dr James Harrison of Chevely
Park Medical Centre and two hospital
trusts, County Durham and Darlington and
Newcastle upon Tyne.
Cristina was awarded an interim payment
of 150,000 two years ago after hospital
bosses accepted liability for 95% of the
total claim.
After Cristina collapsed at her home in
Durham in 2002 with a severe headache,
doctors initially diagnosed a virus. Two
weeks later she had lifesaving surgery for a
brain haemorrhage.
Says husband Sandy, 47: It is a huge
relief as the money will help provide the
care and support that Cristina will need for
the rest of her life.
But Cristina has been left permanently
brain damaged, and will be unable to
remember anything for more than 10
minutes.
The Law Society has called for legislation
to protect accident victims in Northern
Ireland from being pressured into accepting
settlements without legal advice.
The controversial practice, known as Third
Party Capture, has seen insurers offering
compensation deals to victims, later forcing
them into signing documents which they
dont understand.
A spokesman for the group said: Over
the last year the Law Society has been
made aware of growing concerns from
solicitors clients in relation to this practice,
particularly the levels of compensation
being offered to clients and more
signicantly by the tactics being used by
insurers to induce injured parties to settle
claims for compensation.
Tactics used are reported to include the
provision of incorrect information about
legal rights, the discouraging of seeking out
a medical or legal opinion, and consistent
pressing of injured parties to accept
proposed settlements.
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News
11 11
Trust pays out
over amputation
blunder
A hospital trust has paid compensation to
an elderly woman whose leg was cut off
after a wrong diagnosis.
Doreen Nicholls, 72, was told that a
lump in her foot was cancerous, and that
her leg had to be removed below the knee
to stop the tumour spreading.
But the Royal Orthopaedic Hospital in
Birmingham later found that the swelling
was due to a non-cancerous condition
known as pigmented villo nodular synovitis.
Although the trust refused to admit
liability, saying its pathology lab made a
well-informed diagnosis, it has agreed
to pay an undisclosed six-gure out-of-
court settlement.
The error occurred after a team including
orthopaedic, radiology and histology
consultants decided that a needle biopsy
showed a soft-tissue cancer known as a
sclerosing epitheliod brosarcoma (SEF).
Lawyers claim that it was not the rst
time mistakes have been made by the
hospital, and medical negligence expert
Tim Deeming said the wrong diagnosis
was not an isolated case.
Criticism after meningitis death
A 10-year-old boy who died from meningitis
was refused antibiotics until it was too late, a
Newcastle inquest has heard.
And the coroner has criticised the hospital
for allowing observation of the boy by auxiliary
staff to go unrecorded and unreported.
William Cressey died a day after he had
been sent home from Darlington Memorial
Hospital. On his return he had begged:
Please help me if you dont help me, Im
going to die.
He eventually suffered a massive seizure
and slipped into a coma, from which he
never recovered.
Recording a narrative verdict, coroner
David Mitford said Williams death was due to
natural causes, to which a delay in giving anti-
biotic treatment may have contributed.
Although it was reasonable for doctors to
admit William for observation, he said: The
evidence of that observation in the notes
is startlingly inadequate there being no
narrative detail whatsoever, and only one entry
in the temperature chart and three entries of
pain killers being administered during that day.
The evidence of qualied nursing
observation during the afternoon was
unsatisfactory, and it seems any observation
undertaken had been left to auxiliaries and
went unrecorded and unreported.
Couple compensated for baby death
A couple whose baby son died after
doctors and midwives at the University
Hospital of Wales failed to spot signs of
distress have been awarded 160,000
compensation.
Johanne Rees was admitted to the
hospital in November 2005 in severe
pain, but midwives failed to monitor her
labour and missed a heart reading that
showed her baby was in distress. One
doctor told her that she had not gone
into labour, and that she only needed the
toilet.
Ms Rees said: I was screaming in
agony and begging the midwives to get
my baby out but they just left me.
Her baby, Arun, suffered fatal brain
damage, and his life-support was turned
off 10 days after he was born.
Cardiff and Vale University Health
Board apologised unreservedly, insisting
lessons had been learned as a result of
the tragedy.
Katie Norton, director of Primary,
Community and Mental Health Services
for the board said: This
was an exceptional and difcult case and
we have worked with the staff to learn
lessons.
But Irwin Mitchell solicitors, which
acted for Ms Rees and her partner
Krishna Govekar, said they were
concerned after the board originally
refused to accept any blame.
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Untitled-1 1 5/8/08 15:55:17
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Linking medicine with law
News
13
The claims and medical sectors leading
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Blood-loss woman
failed by NHS
A combination of medical error and
procedural failure led to a woman bleeding
to death in a Manchester hospital four
years ago, a coroner has said.
Sally Thompson, 20, from Middleton,
lost two litres of blood when a doctor
accidentally punctured her jugular vein
while attempting to insert a drip into
her neck to administer drugs. Doctors
at the Manchester Royal Inrmary
made two urgent requests for blood to
the hospitals bank, but none arrived
before she died, one hour and 45
minutes later.
The hospital said it had since
reviewed its procedures over the use
of drips, but could not explain the
almost two-hour-long delay.
Nigel Meadows, coroner for
Manchester, said the lack of blood
was a signicant failure which
contributed to her death. He recorded
a narrative verdict at the inquest,
stating that Miss Thompsons death
was contributed to by the hospitals
use of the landmark technique rather
than ultrasound.
John Thompson, 62, Miss
Thompsons father, said he now
intends to sue the hospital.
An unnamed surgeon who may have spread
a bacteria that killed four of his patients
during heart surgery has agreed to stop
operating while the deaths are investigated.
Another eight Nottingham University
Hospitals trust patients are seriously ill, and 94
others have been contacted.
Says trust medical director Dr Stephen
Fowlie: The surgeon agreed with us that he
should stop doing heart valve operations as
soon as we knew about the group of infections.
I would like to stress that our continuing
investigation has found no shortcomings in the
surgeons practice or standards.
The decision was made after worried patients
quizzed staff at the hospital about the chances
of coming into contact with the same bacteria.
It is understood the infection could have been
spread by the surgeon as he is the common
factor in all of the 12 cases.
Those who died were between their early
60s and late 80s.
NHS surgeon in deaths probe
An NHS board has been ned 75,000
after a vulnerable patient committed
suicide on a psychiatric ward.
Sylvan Money, a 26-year-old artist who
had attempted suicide on two earlier
occasions, hanged herself from a curtain
rail at Bronllys hospital near Brecon, mid
Wales, in 2004.
Miss Moneys father, Chris, told
Merthyr Tydl Crown Court that he still
struggled to nd closure ve years after
his daughters death.
The judge ned Powys Local Health
Board 30,000 and ordered it to pay
46,000 in costs after hearing that it had
failed to remove xed ligature points from
the psychiatric unit and how instructions
on the replacement of xed curtain rails
with collapsible alternatives had been lost.
Health and Safety Executive spokesman
Rupert Lowe said: These were vulnerable
patients and its important in providing a
safe environment that ligature points are
not allowed to exist where reasonably
practicable.
The board admitted breaching the Health
and Safety at Work Act 1974.
Health board ned over suicide
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Case management
15
A clinical process
In the last issue, Phil DNetto, head of the Catastrophic Injury Special
Interest Group at the Forum of Insurance Lawyers, considered the
potential conict between rehabilitation case managers and claimant
lawyers. Bill Braithwaite QC responds
I
enjoyed the article by Phil DNetto very
much (Issue 38, p. 17)). I thought it was
expressed sensibly and moderately, even
though I disagreed with most of it. I could
easily see how he, and many other defence
practitioners, would think that, because
claimants lawyers may be focused on
maximising their clients damages, that
might impact on the case managers
performance of his or her duties. I thought
that it could be useful to look a little further
into what he said, bearing in mind that he is
the head of the Catastrophic Injury Special
Interest Group at the Forum of Insurance
Lawyers.
Brain injury case management has been
a particular interest of mine for many years.
I lectured at the inaugural public meeting
of the British Association of Brain Injury
Case Managers in 1996, and I have lectured
extensively on the subject ever since,
including in relation to one of the cases
quoted by Mr DNetto, Wright v Sullivan. I
wonder if I have seen more brain injury case
managers than any other lawyer in the UK?
The thrust of his article is that there may
be a tension between the case manager
and the claimants lawyers. The foundation
of that thesis is that each has different
duties; the case manager whose role is
ostensibly therapeutic... promoting the
claimants independence, and the lawyers
who may be focused on maximising their
clients damages. I cannot assert that
claimants lawyers never try to maximise
damages, but I can say positively that they
should not do so. When I rst published my
book, Brain and Spine Injuries the Fight
for Justice. in 2001, I made it clear that I do
not approve of seeking to maximise. What
both sides should be seeking is a fair and
just result.
I also think that many claimants lawyers
have progressed to realising that part of
their duty is to enable the claimant to
receive the best possible treatment and
rehabilitation even if, or as I would say
particularly if, it will reduce the claim by
improving the claimants independence. It is
because claimants lawyers are often alive
to their duty to maximise the claimants
independence that they have come to use
clinical case managers.
Mr DNetto comments that case
managers are often instructed directly
by the claimants solicitor and attend
conferences with counsel, and that they
routinely give evidence. He says later:
Case managers who disagree with the
claimants legal teams risk not being
instructed in future. Taken together, those
comments might be thought to suggest
that case managers may not act in the best
interest of the claimant. I am sure that is
not what he meant, but I think it may be
worth setting out the correct position.
Wright v Sullivan [2005] EWCA Civ 656
was correctly decided; it is inappropriate to
think that a clinical case manager could be
instructed by claimant and defendant, each
side having potentially different objectives.
A clinical case manager treats the patient,
just as a doctor does, and must have a free
hand. I have told case managers scores of
times, if not hundreds, that they are treating
patients, and they must decide what is best
for the claimant.
FOIL must realise that it is not sufcient
for the claimants lawyers to exercise no
supervision or control, otherwise costs can
spiral without any demonstrable benet.
Tackling the problem
I think perhaps Mr DNettos views are
inuenced by two misconceptions. First, that
claimants lawyers are maximising claims
and, secondly, that clinical case managers
will bend to the will of the claimants
lawyers. Neither is correct in theory. If either
happens in practice, the proper remedy is to
cure the individual problem, not change the
system.
He suggests that the Deputy could
employ the case manager, to allow the
case manager to focus on the claimants
needs rather than damages. I have never
yet met a case manager who was focused
on damages. I suspect that his suggestion
might just be changing one perceived evil for
another. The Deputy may be under a duty to
maximise the claimants damages, and so
the tension might be the same. Of course,
I would say that a good Deputy would be
as straightforward as a good claimants
solicitor and barrister, and that neither would
inuence the case manager inappropriately.
I think that the true remedy for the
problem which Mr DNetto, and presumably
FOIL, perceive is to ensure that claimants
lawyers and case managers understand
that the process is a clinical one, and that
the lawyers do not dictate treatment, and
should not use the process to maximise
damages. In return, insurers and defence
solicitors could try to realise that many
claimants lawyers and case managers know
far better than they do how to treat the
claimant appropriately.
I have told case managers scores of times,
if not hundreds, that they are treating
patients, and they must decide what is
best for the claimant
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Seek and you may nd
Paul Hurley considers the impact of xed fees for low cost RTAs
on the way solicitors market their services
F
ollowing a lengthy and in-depth
consultation period, the MOJ has taken
the decision to streamline the system
and to introduce a new scale of xed fees for
low value road trafc accident personal injury
claims. Some may say this is a sensible and
justiable decision, but any reduction in costs
could lead to a downturn in overall personal
injury claims, which is certainly not good for
access to justice.
Solicitors rely on their marketing budget to
generate cases, and so, now that the fog is
clearing, solicitors are busy number crunching
to work out what on average they can afford
to pay per case, whilst at the same time
maintaining a healthy prot margin.
In common with most industries,
competitors dont normally pay the same for
their raw materials. We all know about bulk
buying, cash ow, credit terms, long term
agreement, etc, and so it would be wrong to
assume that all solicitors have a marketing
spend equal to others in their eld, or to put
it another way, are prepared to or could pay
the same as other solicitors per case.
Early indications show that the average
recoverable costs per case could reduce by
15 20%; not an insignicant amount, but it
could have an even bigger impact on those
solicitors who, under the present system,
move cases out of the xed costs scheme at
the earliest opportunity. So with the abacus
working overtime on prot margins, tacticians
will be studying the new procedures to
identify how best to work the system.
Interesting times ahead.
Marketing challenges
Over the past few years, Claims
Management Companies have been
instrumental in attracting claimants for
solicitors, so if the new xed costs reduce
solicitor revenue, then it would be fair to say
that there will be less cash in the system
for attracting good quality work through the
more traditional marketing routes of TV and
radio advertising. If this is correct, then not
only will solicitors who solely rely on these
routes to market see less revenue from
their work, but they could also see fewer
claimants walking through the door.
There will always be potential claimants,
but marrying the claimant and solicitor
could become more difcult if the spend
is reduced, and so access to justice could
fail many potential claimants who through
reduced advertising are unaware of their
legal rights. With the abacus and tacticians
already at the party, they will evidently be
joined by the marketing experts to explore
how claimant retention is at least maintained
through a well-thought-through marketing
strategy.
Right time, right place is the name of the
game when it comes to getting claimants on
the hook, and so where necessary solicitors
will look to reengineer their marketing spend
and routes to market to maximise client
introductions. Many solicitors openly admit
that marketing is their weakness; if it wasnt,
it may be argued that there wouldnt be the
need for CMCs. But in the new times of
reduced fees, solicitors will need to explore
all options to make their pound go further.
Taking the safe bet is not always the best
bet, particularly in the long term, and so
it depends on the farsighted attitude of
the solicitor to embrace new methods of
case generation, through a calculated and
methodical strategy to help ensure that there
is jam on the table tomorrow.
Responding to change
Technology and innovation are moving at
a greater pace than ever before. We are
seeing new ways of obtaining claimants
today and the possibility of repeat business
tomorrow, but with any new route to
market, it will come at a risk. What is
thought to be a wise and trusted investment
today doesnt mean survival in the long
term, but when change is forced upon us
there is little or no option but to respond.
Tried and tested methods are a comfortable
way of working, but by being blinkered for
too long opportunities can be missed.
No doubt the jury is still out for those
solicitors around the country who are most
affected by the recent changes, but to use
a quote of Charles Darwin: It is not the
strongest of the species that survive, nor
the most intelligent, but the ones most
responsive to change.
The MOJ changes are a challenge, but
I have no doubt that those of us who
seek justice for claimants will relish the
prospect of seeking new ways of working
and ensuring that all avenues for claimants
to obtain compensation are well and truly
explored.
Paul Hurley is Business Development & Marketing
Director at ARAG Legal Services
Marketing
17
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19
Medical reporting
Part of the process
Matthew Game examines how the RTA claims process reform may
effect medical evidence
A
fter months of wrangling and
delay, we now know what the
governments intentions are for the
reform of the claims process in basic road
trafc accidents. Many companies in the
personal injury sector have been concerned
about the effect this will have on their
business models.
In recent articles and leaders published in
industry magazines the fees that claimant
solicitors will be paid under the new
structure have been central to the debate.
The speculation on the costs and fees now
being looked at has led some to believe
claimant personal injury solicitors could face
a cut of up to 53% in the fees they receive.
It begs the question therefore: exactly how
will these changes affect the medical evidence
and rehabilitation sectors? After all, the point
of these changes was to produce a more
balanced and streamlined RTA claims regime.
The fee structure has been generally
accepted, but the detail must be further
rened.
Some things are crystal clear. Solicitors
will be paid 400 for stage 1, whereby they
complete a new notication form and send
this to the insurer for a decision on liability.
For stage 2, where liability is admitted and
the process continues to a settlement within
a strict timetable, solicitors will receive 800.
At stage 3, where no settlement on
quantum is reached and the case goes to
court, solicitors will be paid 250 for a paper
hearing or 500 for an oral hearing.
In simple terms this means the most a
claimant solicitor rm can receive under the
new regime is 1,700. Currently under the
existing predictable costs scheme for RTA
claims which continues for cases that fall
out of the new process the maximum is
2,550 for a 10,000 claim. This translates
into a 33% cut in fees. Where there is no
dispute over quantum, they will receive
1,200, a potential 53% drop.
What has been decided is that there will
be provisions for a second medical report in
more complex cases and an extra 500 in
cases involving children. Success fees will be
12.5% for stages 1 and 2, and up to 100%
where cases reach stage 3.
All this means that the focus for medical
reporting agencies has to be on getting
the report back to the lawyer as quickly
as possible after the doctor has seen the
claimant. Fortunately, this is not earth-
shattering news, since most as we have
been preparing for this for two years, and
investing in developing initiatives that
enable the report to be with the instructing
lawyer or insurer within days, or even hours
of the examination.
Mobile Doctors Limited
is a wholly owned
subsidiary of Mobile
Doctors Group Plc
The Registered Office
of both Companies:
4 Bourne Court,
Southend Road,
Woodford Green,
Essex IG8 8HD. www. mobile-doctors. co. uk 0844 848 8800
T H E N O . 1 P R O V I D E R O F M E D I C A L E V I D E N C E
Mr Alexander J M Birnie MB FRCS
Consultant Orthopaedic Surgeon
Expert in virtually all forms of orthopaedic surgery and trauma with
special interests in backache, neckache and whiplash injuries.
I consult at:
GMC No: 0074546
Tel: 0191 3734457 Fax: 3734457
E-mail: ajmb@ajmbirnie.com
2nd tel: 0191 5844614 (secy)
Eshwood House
Acton Road
Esh Winning
Durham
DH7 9PL
8 Grange Terrace
Stockton Road
Sunderland
SR2 7DF
AJMBirinie.indd 1 27/4/09 15:22:52
Medical reporting
Central role
The Ministry of Justice has recognised that
the medical is still the crucial element of a
personal injury claim determining the type
and severity of an injury therefore the way
medical reporting organisations operate and
administer the MRO agreement will still be
of huge importance.
Clearly the best organisation to administer
and manage the MRO agreement would
be the Association of Medical Reporting
Organisations (AMRO). A founding
participant in the MRO agreement, it is after
all the most obvious point of reference for
the medico-legal industry and would be
extremely valuable in dealing with all the
queries that medical reporting organisations
have, as well as with issues regarding
compliance.
One of the original objectives of the
agreement was that it would eventually be
written into the rules and become part of
statute.
If reforms in the personal injury sector
are to be achieved then ultimately the
medical reporting agencies have to be
central to achieving the efciencies so
desired by all concerned. AMRO has a
massive role to play in inuencing the
changes with the MRO agreement clearly
demonstrating what is possible.
Early intervention rehabilitation also
has an important role to play in ensuring
an efcient process. It is essential that
rehabilitation providers develop diagnostic
and triage processes that quickly identify
early on the need for rehabilitation services.
There is no doubt that the formation of
the UK Rehabilitation Council (UKRC), as
a body to provide an authoritative voice
and focal point for anyone working with
medical and vocational rehabilitation, has
been welcomed by all stakeholders.
In May this year the UKRC published
its UK Rehabilitation Standards, which
provide the rst recognised standards
for rehabilitation services, informing and
supporting both users and purchasers of
the services.
Fundamental change
The claims process reforms will completely
change the way an injured person is
treated and compensated, with the simple
aim of reducing costs without affecting
their rights.
MROs receive a large number of
referrals each week, the majority of which
are for people with whiplash-associated
disorder (WAD). In the past, these
patients have been notoriously difcult to
manage, often receiving a large amount of
treatment with little obvious benet.
The new system will encourage more
MROs to offer xed-price treatment for
WAD and who effectively govern each
case clinically from admission to discharge.
Mobile Doctors has already launched
a system, working in conjunction with
Nufeld Health, that does precisely that,
and I would expect all medical evidence
and rehabilitation providers to follow suit.
As nal negotiations continue over
the next few months it will become
clearer to everyone that if the proposed
claims process reforms are to succeed
then MROs will have to deliver without
forgetting the principles of the UKRC, and,
most importantly, without forgetting the
claimant.
Matthew Game is Chief Executive Ofcer of
Mobile Doctors
A one-day conference focused on Personal Injury law,
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Conrmed speakers:
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Carole Chantler, Chairperson, CMSUK
Hilary Meredith, Hilary Meredith Solicitors
Phil DNetto, Partner, DWF
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All work undertaken by a team of
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Outstanding yet approachable high-end practitioners
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Members of the Personal Injury team:
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Susan Rodway QC
Colin McCaul QC
Charles Cory-Wright QC
John Tonna
Roderick Noble
Simon Edwards
Geoffrey Brown
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Director of Clerking: David Barnes
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ThirtyNine_HalfPage.indd 1 23/4/09 10:51:18
Olympus DS-5000 and AS-5000 spearhead the
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ith the DS-5000 Voice Recorder and
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23
Advertorial
Rehabilitation
24
T
here is a growing body of evidence
to suggest that signicant motor
recovery following severe traumatic
brain injury (TBI) can continue for several
years post injury. This evidence tends to
focus on intervention leading to successful
motor recovery, however there is limited
evidence documenting the intervention
where motor recovery is limited. Time
invested with such clients to assist with
postural management is invaluable.
This case study came about following
work with a client who had severe physical
limitations following a TBI and was in
rehabilitation at the Queen Elizabeths
Foundation, Brain Injury Centre, Surrey.
Although he made some progress, functional
gains were minimal. The gains he did make
were relatively small and some were difcult
to measure objectively, however there was a
great deal to learn from him and the success
was in his postural management and the
progression of his postural abilities.
The patient
At the age of 18, Ben suffered a severe
TBI in July 2004, in a road trafc accident.
He commenced rehabilitation at the Brain
Injury Centre in May 2007. He presented
with severe physical difculties including
increased tone, no functional movement
throughout his left side, over-activity of his
right lower limb, no sitting balance, and joint
restriction in his left elbow, ankle and right
hand (see posture example, Figure 1).
He required the assistance of two with
personal care, bed mobility, low-level
crouch transfers and hoisting. Ben had
complex behavioural and speech difculties.
Cognitively, he had severe anterograde
amnesia and lacked insight, often denying
his TBI. Subsequently, his ability to comply
with therapy was extremely limited and had
a signicant impact on his ability to change
functionally. Despite this, Ben enjoyed
exploring movement opportunities.
The intervention
Initially, the possibility of Ben changing
functionally was explored. However,
following a preliminary period of
rehabilitation it was evident that any
functional changes would be minimal. Thus,
the focus moved more towards postural
management and to allow him to participate
as much as possible in movement. Treatment
very much depended on Bens behaviour, the
equipment and the experience and number
of staff available.
Improving range and activity
in trunk and pelvis
Increasing the range and activation in Bens
trunk and pelvis was explored utilising
a variety of equipment and treatment
techniques. He required innovative
approaches to keep him engaged and
manage his behaviour. Through exploration
it was ascertained that we could be more
experimental in treatment than initially
thought. This is best demonstrated through
the use of photographs, see Figures 2 to 5.
The ability to move between and
access a variety of postural sets
Following work to increase the activity and
range in Bens trunk he became increasingly
able to explore moving between postural
sets. He demonstrated an improved ability to
move between supine and prone (see Figure
6), assist with lying to sitting (Figure 2), move
between sitting and standing and maintain a
standing position with reduced support.
It is evident from changes in outcome
measure scores that Bens postural abilities
improved (see Table 1). His trunk and
pelvis activity and ability to move between
and access postural sets had progressed
following intervention. Having a larger
repertoire of postural sets and being able
to assist when moving between them
increased his postural activity, thus reducing
the possibility of deterioration.
Increasing range
The restrictions in Bens left ankle and elbow
had a signicant impact on his alignment
in all postural sets. It was achieved through
exploring a variety of splints, Botulinum
Toxin, soft tissue release, anti-spasticity
medication and dosage, serial casting, soft-
scotch casts and regular standing to assist
with ankle range.
Increasing elbow range assisted with
personal care and enabled him to position
his left arm over the edge of the bed when
lying prone. The range gained at his ankle
improved his alignment in sitting and
standing and improved his ability to weight-
bear in crouch transfers.
Exploring seating
As Bens right side and trunk became stronger,
his ability to alter his position increased, but
this had a negative impact on his posture.
He used a mass extensor pattern, pushing
through his right leg. This was usually a result
of a behavioural response.
In sitting, if Bens pelvis was anchored
Longterm recovery
What are the effects of late stage physiotherapy rehabilitation following
a severe traumatic brain injury? Hannah Dearlove presents a case
report of a client with severe physical impairments four years post injury
?????????????
25
Rehabilitation
in neutral, he gained lumbar extension and
improved alignment throughout his trunk
and neck. Many adjustments were made
to his current seating in order to secure his
pelvis, however these were ineffective. To
maintain and improve his sitting posture and
prevent deterioration, correct seating was
integral. Ben was assessed in a moulded
seating system and for specialist seating. He
is awaiting casting for a moulded seat insert,
which should maintain his pelvis in neutral
and sustain his posture for longer periods.
Discussion
Ben was a challenging client with complex
difculties. His cognitive and behavioural
impairments have had a profound effect on
his rehabilitation potential. Owing to this, the
way in which we worked with him had to
be innovative and varied in order to manage
his behaviour, engage him in sessions and
reduce his pre-conceived ideas of movement.
Having the staff available and suitable
equipment was essential to explore fully his
potential and activate his trunk in a variety
of novel ways. The equipment enabled us
to work with him safely in many positions,
which would otherwise not have been
possible, due to his unreliable behaviour. The
time he spent at the Centre also gave us the
opportunity to loan and trial several pieces
of equipment for Ben, such as splints and
standing frames, prior to their purchase.
Over time, Ben improved in his pelvis and
trunk activity and alignment. This enabled
him to assist and resist movement, alter his
posture, reach further with his right arm,
and move between and access an increased
variety of postural sets. Owing to limited
insight and communication difculties, it
was not possible to determine the difference
this made to Bens quality of life. However,
he now has more movement choices and a
degree of control. Family have been able to
explore more movement options with him
and have reported the level of support he
requires physically has gradually reduced.
If Ben hadnt had the opportunity to access
rehabilitation, his posture is likely to have
been extremely difcult to manage in the
community, due to stafng, environmental
constraints and equipment availability.
He is at a level now where his posture is
much more manageable and he has more
movement control. As a result of this, his
risk of deterioration or developing secondary
complications has greatly reduced.
Overall, Bens motor recovery was limited.
However, investing time in his rehabilitation
has enabled him to make small but signicant
changes, ultimately reducing his complex
postural requirements and is likely to have
increased his quality of life, now and in the
future.
Conclusion
Ben presented with severe physical,
cognitive and behavioural difculties
following his TBI. He presented a challenge
in rehabilitation due to his lack of insight and
unreliable behaviour. Despite limited motor
recovery, he made signicant progress
in his postural abilities, reducing his long-
term postural requirements. Our being
experimental with equipment and therapy
enabled him to explore activating his trunk
in a variety of safe and novel ways and
ultimately led to his progression. Without
input, he is likely to have been extremely
difcult to manage in the community
because of complex postural requirements,
and his posture would be more likely
to deteriorate leading to secondary
complications.
Acknowledgements
I would like to thank the patient described and
his family for giving their permission to give this
account. Thanks also go to my colleagues who
were involved in his care and management. The
patients real name was changed for this account.
Hannah Dearlove is a Senior Physiotherapist at the
Queen Elizabeth Foundation Brain Injury Centre
in Surrey
Figure 1: Posture examples in sitting
Figure 2: Lateral trunk elongation working
from side lying to sitting. Carried over
functionally with carers when getting out
of bed.
Figure 3: Inversion with assistance of
two. To mobilise trunk and gain central
stability in a novel framework. Reducing
his preconcieved ideas of extension.
Figure 4: Meywalk frame with assistance
of two. Exploring stepping and postural
extension against gravity.
Figure 5: Trunk activation on roll
Figure 6: Working in prone position
Figure 2
Figure 4
Figure 6
Figure 5
Figure 1 Figure 3
On admission
Following
intervention
Postural
assessment scale
10/36 15/36
Trunk control test 0/100 24/100


A member of the Association of National Specialist Colleges

REHABILITATION AFTER BRAIN INJURY 16 35 years

Re-education to promote physical ability to improve functional
independence
Support from psychology-led, wide ranging multidisciplinary
team
Peer group support and the opportunity to make friends
Training in independent living skills and mobility training
Education courses and opportunities; pre-vocational training
Access to the community; work experience



Queen Elizabeths Foundation Brain Injury Centre
Banstead Place
Park Road, Banstead
Surrey, SM7 3EE
Eileen Jackman - Principal
Tel. 01737 356222 Fax. 01737 359467
Email: rehab@braininjurycentre.org.uk
Web: www.qef.org.uk/braininjury
Registered with the LSC Registered Charity No. 251051


Case Management Service
Building on the Trust's experience with catastrophic injuries we
are able to offer an independent Case Management Service
including:
Acquired Brain Injury, Cerebral Palsy,Medical Negligence etc.
Assessments and on-going progress reports
Implementing and managing rehabilitation and support
packages, both community based and in specialist
rehabilitation centres
Court reports and Expert Witness services
Medico-legal, NHS and Local Authority work undertaken
This is an independent service and there is no presumption
that someone referred to the Case Management Service for
assessment, will necessarily be recommended to services
provided by The Disabilities Trust.
For further information please contact Alex Garden
The Disabilities Trust, Case Management Service,
60 Queen St, Normanton, WF6 2BU, Tel: 01924 224480
or Email: case.management@thedtgroup.org
www.thedtgroup.org.uk
Registered Charity No 800797
DT_CaseMan2_LandM09 23/10/2009 16:59 Page 1
27
Clinical negligence
A
decade ago, Sir Ian Kennedy wrote:
There is a real fear (particularly
among junior doctors and nurses)
that to comment on colleagues, particularly
consultants, is to endanger their future work
prospects. The junior needs a reference and
a recommendation; nurses want to keep
their jobs. This is a powerful motive for
keeping quiet.
The Nursing and Midwifery Councils
decision to strike off Margaret Haywood
for breaching condentiality while she
raised concerns on poor patient care
has highlighted the personal cost to the
whistleblower.
It is clear that the whistleblower pays a
high price for raising concerns. A similar
phenomenon was witnessed by Dr Peter
Wilmshurst. In 2006, he wrote: This
experience arose because I was reported
to the GMC and have reported other
doctors to the GMC. My experience of
the GMC being used to try to silence a
whistleblower is not unique. From these
experiences, it appears that the regulatory
bodies governing the health profession have
a poor comprehension of whistleblowing.
The health professionals registration with
the regulatory body is held as a Sword of
Damocles. These experiences will naturally
have a negative effect on the workforce. No
health professional wishes to ght their way
through allegations of misconduct.
Dr Steve Bolsin, credited with the Bristol
Inquiry, says: Whistleblowing is not easy
and it is not something that the medical
profession trains its members to do. This is
despite the plethora of regulations exhorting
doctors to report any colleagues whose
performance or practice may give them
cause for concern.
However work from John Goldie in
Glasgow has shown two things very clearly:
1. The medical training likely to reduce
the likelihood of medical practitioners
reporting poor care from their colleagues.
[Less than 95% of medical trainees
would report a senior colleague at the
end of their medical training.]
2. The trainees selected were extremely
unlikely to report a senior colleague
before starting their medical training.
[87% of medical students would not
report a senior colleague at the start of
their medical training.]
Somehow the medical profession has
become so good at selecting those that
will not report senior colleagues that the
selection processes of medical schools has
intuitively or deliberately selected 87% non-
whistleblowers. This observation is deeply
worrying to those who believe that one of
the mechanisms for quality improvement in
health care is reporting poor care. However
this mechanism alone may be a very good
unifying explanation for the view of Sir
Donald Irvine (past President of the GMC)
that the medical profession has developed
a culture that is paternalistic, secretive
and self protective and that in the last
20 years a gap has opened up between
that culture and public expectation. The
fact that Sir Donalds article was written
10 years after the Bristol Cardiac Disaster
was rst publicised suggests that the
medical profession in the UK has failed to
learn from its most dismal hour and that
the GMC has failed not only the profession
but also, and more importantly, the British
Public. This failure has been absolute and
catastrophic.
After Mid Staffs
The result of this catastrophic failure
can now be assessed quantitatively. On
17 March 2008, the Health Commission
announced an investigation into
the abnormal mortality rates at Mid
Staffordshire Hospitals. A year later,
the Commission found that between
400 and 1,200 patients may have died
unnecessarily. The actual gures were
unclear. Elizabeth Clare, a young nurse at
the hospital, had raised concerns that went
unnoticed. She told the Nursing Times:
As a whistleblower I felt completely
unsupported and thought I might as well
have kept my mouth shut.
The Royal College of Nursing surveyed
5,428 members, including 571 from
Scotland, and found that 64% of nursing
staff did not know if their health board
or employer had a whistleblowing policy.
Around 80% of staff were concerned
that they would be victimised or their
career would suffer if they reported any
concerns to their employers. Of those who
had reported issues, only 24% said their
employers had taken immediate action and
38% said no action was taken at all.
In the modern age of healthcare, and
after the Bristol Inquiry, there appears to be
a catastrophic system failure in detecting
high patient mortality quickly. Not only are
Speaking out
Are whistleblowers protected in the NHS, asks Rita Pal?
Clinical negligence
28
whistleblowers unsupported but there
appears to be a problem with monitoring
clinical risk.
James Butler of the Department of
Health says: I can conrm that there is no
regulation or law requiring individual hospital
wards to calculate patient death rates. It
was left to Dr Fosters monitoring unit at
Imperial College to report the unusual spike
in death rate for Mid Staffordshire NHS Trust;
it is only following this spike in mortality rate
that the Health Commission commenced a
full investigation. The question remains, was
there a more effective way of monitoring and
correcting substandard care earlier?
The Department of Health considers its
monitoring system to be effective despite
these catastrophes and scandals. Ben
Bradshaw MP says, A compulsory and
routine system for calculating mortality rates
would face a number of difculties. Firstly,
obtaining rates requires an appropriate
denominator to reect the population risk.
Given the transitory nature of patients
on a ward and variations in age, sex and
case complexity on the ward, it would be
very difcult to undertake calculations in a
way that was meaningful and consistent
over time. Results would be subject to
considerable statistical variability which
would make interpretation of routine gures
meaningless. Appropriate local clinical
governance and audit processes are more
likely to pick up and interpret exceptional
cases than routine monitoring systems.
Poor communication
In June 2009, the BMA released a survey
called Speak Up for Patients. Of the 70
percent who had raised concerns with
their Trust, 46% were not aware whether
anything had happened as a result. 15%
were not approached for further information
and nine percent said that information they
provided was shared more widely than they
were comfortable with. 16% stated that
they had been warned that raising concerns
could negatively affect their employment.
In the minority of cases where doctors had
not raised their concerns, this was most
commonly because they were not condent
that it would make a difference (81%). By
contrast in 2004, the website Doctors.net.uk
carried out a survey on patient safety. 2,500
doctors responded. 81% said they did not
report errors because they did not trust their
NHS Trust. The 2004 result appears to agree
with Professor Steve Bolsins view of the
current situation.
The unsafe environment for
whistleblowing and a failure of adequate
monitoring is currently having a detrimental
effect on patient safety. The net effect is a
failure to rapidly pinpoint and act on areas
where patient safety is compromised.
Mortality rates only appear to be detected
when the matter reaches catastrophic levels.
Detection appears to rely on arbitrary
elements such as patient complaints or
staff reporting errors. The Department of
Health has only recently promised to monitor
hospital mortality rate. There is still no
scientic way of monitoring and rapidly
detecting discrete neglect and compromises
in patient safety. For instance, poor care on
one ward cannot be detected unless the
mortality rate is signicantly higher. More
worryingly, the Health Service Journals
survey in May 2009 found that around
half of hospital managers and other staff
believe elements of poor standards found
at Mid Staffordshire foundation trust exist at
their own organisation. If this is an accurate
reection of the current state of play, it
follows that the overall hospital mortality
statistics may not be an accurate reection
of the discrete pockets of poor care that may
exist within hospitals. In Mid Staffordshire
Hospitals, it is clear that the complaints were
not enough to trigger a full investigation. This
may be the case with other hospitals.
On 18

May 2009, Ben Bradshaw MP
told the House of Commons: It is clear
from the reports that complaints were not
tackled satisfactorily at Mid Staffordshire
NHS Foundation Trust. The high number of
upheld complaints was one of the things that
rst worried the Healthcare Commission. As
of 1 April this year, we have reformed and
strengthened the NHS complaints system.
Hospitals need to do better at resolving
complaints locally.
Leigh Day Solicitors acting for the campaign
group related to Mid Staffordshire Hospital
stated: The complaints procedure at the
hospital also remains an area of concern
The unsafe environment for whistleblowing
and a failure of adequate monitoring is
currently having a detrimental effect on
patient safety
Clinical negligence
29 29
amongst patients, their relatives and local
residents. They believe an independent
advocate or similar such individual or body
needs to be appointed to deal with the
concerns that have been and continue to be
raised about the quality of care provided at
the Hospital.
Jonathan Peacock of Irwin Mitchell says
Mistakes are being made, peoples lives are
being devastated and lessons are not being
learned. One preventable death is one too
many and our law rm alone has had rst
hand involvement in a number of legal actions
against the Trust, where people have died
unnecessarily.
Accidents Direct write: The damning
report [Mid Staffordshire Hospitals]
notwithstanding, making a successful
compensation claim could take many years
as ones case could get stuck in the system.
This is because patients and families hoping
to make a claim will have to deal with the
NHS Litigation Authority (NHSLA). The main
concern here about the NHSLA is that some
lawyers see it as terribly slow. Thus, anyone
considering making a claim may have to
contend with this or forget it altogether. Other
concerns raised by experts include limitation
of access to Legal Aid. They suggest that No
Win No Fee may be an option.
In March 2006, the NHLA gure quoted for
Mid Staffordshire NHS Trust was 652,418
[2005-2005]. By comparison, its neighbour
North Staffordshire NHS Trust paid out
3,515,590.
Long road to justice
The current system shows a poor patient
safety prole naturally resulting in litigation.
This is litigation that may have been prevented
had more robust systems been in place. The
attitude to clinical risk appears to be reactive
as opposed to proactive and preventative.
Tony Wright, Labour MP for Cannock
Chase, Staffs, told BBCs Panorama: The
whole point of introducing whistleblower
provisions was that someone had got
somewhere to go so they could raise these
concerns quite properly without threatening
their job, [or] having to go to the media.
Despite Mr Wrights assertions, the Public
Interest Disclosure Act is certainly not allaying
the fears that clearly exist for whistleblowers.
On a practical level, it is fraught with
difculties. Funding litigation is one problem;
character assassination in Employment
Tribunals is another issue. The path to justice
is paved with extreme difculties. Nothing
is for certain in courts. Vindication in the
courts does not guarantee subsequent fair
treatment by the employer. Whistleblowing,
much like litigation, attracts stigma. Many
whistleblowers have criticised the adequacy
and high costs of legal representation.
Litigation and the race for justice have
resulted in bankruptcy in some cases.
In 2005, the Court of Appeal judgment in
Ian Perkins case concluded that employers
will only have to argue that an employee
was difcult or conducted an aggressive
defence in a disciplinary hearing, to be
entitled to sack him or her. Lord Justice Wall
stated Mr Perkin was, of course, entitled to
defend himself, but the manner of his defence
and in particular his attacks on the honesty
and nancial probity and integrity of his
colleagues opened the door in my judgment
to the tribunal being able to nd that any other
disciplinary process would have ended with
the same result.
Professor David Lewis examined the last
ten years of the Public Interest Disclosure
Act 1998. He asks the question are
whistleblowers adequately protected?
He concludes that PIDA 1998 has not
adequately protected whistleblowers and
makes 12 recommendations for change.
Despite the European Commissions
acknowledgement that whistleblowers can
play a part in the ght against corruption, the
author notes that the common standards for
their protection is a long way off.
In conclusion, given the lack of protection
from the Public Interest Disclosure Act 1998
and the silencing effect on whistleblowers
of authorities, its hardly surprising that the
mortality rate of Mid Staffordshire NHS Trust
was so high before detection or investigation.
In 2000, Gavin Yamey wrote in the
BMJ: Whistleblowers face economic
and emotional deprivation, victimisation,
and personal abuse and they receive little
help from statutory authorities. In reality,
the public face of whistleblowing is rather
different from the stark and shocking reality.
The whistleblower is often perceived as not
being a team player. Cultural attitudes do
not appear to have changed. Realistically,
litigation-conscious Trusts with known system
faults may well be reluctant to employ
known troublemakers with the label
whistleblower. Without a complete overhaul
of the system and a review of whistleblowing
by the Health Select Committee in Parliament
and a consultation on health policy,
there appears to be little prospect of any
improvement in the future.
Client care
Client cooperation
Ben Ogden explains how making the most of your client base can
help recover costs and meet the challenges of these economic times
R
ecent research has shown that
personal injury solicitors fail to
retain a large percentage of their
accepted cases because the client does
not sign and return the relevant documents.
Claims are procured through an assortment
of schemes from payments upfront with
no guarantees to invoice on acceptance all
exposing the solicitor to nancial risk.
With the perennial battle to nd a cost-
effective, consistent lead generation source
it is doubly frustrating to lose potential
cost-baring cases because you fail to gain
instructions from clients.
A lot of practices choose not to use sign-
up agencies as these can often be expensive
and monies are due even if they dont
deliver, which further adds to acquisition
costs without the guarantee of recovering
costs.
Any solicitor reading this should reect
on the number of cases you have closed
in the past 24 months due to client non-
cooperation. How many are you about to
close because you are tired of trying to get
the client to commit? With the limitation
period set at three years, some solicitors
have hundreds upon hundreds of cases
where they could be recovering costs if only
they received authority from the client. With
some solicitors losing thousands a month
on referral fees because the client doesnt
cooperate, this can be a huge problem for
legal practices and cost them a lot of money.
The feedback factor
There are several factors affecting client
cooperation, primarily the documentation
which is often lengthy and lled with
legalese. In fact, the majority of paperwork
reads like a foreign language to the average
consumer.
Collect feedback from your clients about
the paperwork they receive and evaluate
what they think how could it be changed to
improve your return rate?
It helps to examine the journey a client
takes through the lifecycle of a claim. The
solicitor is an expert in the practice of law if
the client questions him or her on points of
law, they will receive succinct and condent
answers. However, question the solicitor on
less familiar ground (eg customer service,
client retention, complaint resolution) and the
answers are less condent, or in extreme
cases, non-existent. These failings can result
in poor client retention and lost prots.
Experience shows that practices with the
highest turnaround from an accepted case
to receiving the appropriate paperwork back
are those that have in-house marketing and
processing departments whose sole purpose
is customer service and making sure clients
understand the documents they receive and
send them back. This leaves solicitors with
time to concentrate on winning cases.
Commitment
There are two ways in which a practice can
get more of their documentation back and
gain commitment from clients on the cases
they have closed.
A practice could set up an in-house
customer service team whose sole purpose
is to market to existing clients and understand
why they do not send your paperwork back,
help them understand the paperwork, make
sure it is lled in correctly and deliver it to the
relevant paralegal or solicitor so that they can
start to work on the case.
This method, when implemented properly,
is very effective for large cash-rich practices
with guaranteed volume. In these conditions,
such a team will reap huge rewards. For
most others this is not a nancially viable
solution to the problem as the team
represents an additional xed cost that
at times may be under-utilised. To remain
effective it requires ongoing training and
specialist management.
The alternative is to outsource this work.
IT support, web design, telephone systems,
property maintenance, cost negotiation, and
bill drafting are all areas that are traditionally
outsourced by solicitors. It requires minimal
thought to make this decision because it
makes economic sense to invite an expert in
to provide a specialist service.
Outsourcing has huge benets, most
notably that it frees up the time to
concentrate on what drives your business.
When outsourcing, you know that you
are passing your paperwork to those who
specialise in this eld they can give
you recommendations on any problems
encountered with your paperwork.
The bottom line is that you need to see
results without having to spend unnecessary
money by outsourcing on a results-only
basis. Only when the client has committed
to you should you have to pay for the
service, thus you are only paying for a
service when you know you are going to
recover your costs.
Ben Ogden is Director of PINK Legal Support
Services.
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which is provided in partnership with
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