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The first three months of 2017 have been busy in the field of clinical negligence. There is a Ministry of Justice consultation on fixed costs in progress coupled with Lord Justice Jackson’s wider review on costs in civil litigation; a consultation on birth injury claims and whether the current system of redress is appropriate, a change in the discount rate and an associated consultation on whether the system for setting the discount rate is fit for purpose and the rebranding of the NHS Litigation Authority to NHS Resolution. While all of this has been going on there have been 11 Court decisions, 5 of which were at first instance with the remaining 6 cases being heard on appeal.
The first instance decisions have covered a wide range of topics – 3 concerned the application of the Bolam test in respect of establishing negligence; 1 provided an illustration of how the Montgomery consent rule is likely to apply in practice in respect of spinal surgery, and the final case, a decision by Master Yoxall, concerned a procedural point following the withdrawal of a Part 36 offer after the change in the discount rate.
The cases decided on appeal covered an equally wide range of topics – independence of an expert, alleged bias of a trial judge, application of the Montgomery consent rule and whether liability should be imposed upon an A&E receptionist. Two costs decisions have also been dealt with on appeal; how a costs budget is dealt with at subsequent Detailed Assessment proceedings and assignment of a CFA and After the Event Insurance policy.
What can we take from the policy consultations and judicial decisions of the first quarter of this year? Well, policy and law surrounding clinical negligence continues to evolve and remains under the spotlight. One thing is for sure, the remainder of the year proves to be packed with consultations and decisions that will continue to challenge clinical negligence practitioners. For further details of the Court decisions handed down during the past three months click here.
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