Category Archives: News

So farewell then Legal Aid

When we started this Firm in 1992, over 95% of the claims we handled had the benefit of Legal Aid.  The remaining 5% were private paying clients.  Back then there weren’t any ‘no win no fee’ agreements (CFA’s) – they didn’t come in until 1998.

Slowly and over time, successive Governments have reduced the eligibility for legal aid so that now only children injured at birth (or very shortly after) are entitled to apply for it.  Everybody else is left either paying the legal fees themselves or much more commonly getting their solicitor to act on a CFA.

From 95% in 1992 we are now down to about 1%.  Most cases nowadays are funded by CFA’s.  This is a national trend as well.  Figures published by the Government show that in 2019 only 118 cases out of about 11,000 of the claims lodged had legal aid.  This is just under 1%.  The rest were mainly on CFA’s

Legal Aid did work, it enabled access to justice for those that could not afford it.  However, with the advent of CFA’s and the lack of political will to properly fund legal aid, its decline was inevitable.  This trend is not going to reverse.

Hilton Armstrong – June 2021

Accreditation with Law Society and AvMA

For many years, Hilton Armstrong’s experience in handling clinical negligence claims has been recognised by accreditation with The Law Society and AvMA.

We are very pleased that Joanne Davies has now also been accredited by the Law Society and is now a member of their Clinical Negligence Accreditation.  This accreditation is a recognised quality standard for practitioners representing claimants in clinical negligence matters.  Joanne became accredited on the basis of a detailed portfolio of her recent work and the accreditation will last for 3 years.

Following review of her recent work and a lengthy interview, Kathryn Watson is now a member of AvMA’s Specialist Clinical Negligence Panel.  AvMA is a charity for patient safety and justice and their panel “has come to represent an essential quality mark for those clinical negligence practitioners who place clients at the centre of their practice.”  Her accreditation will last for 5 years.

We are pleased that the hard work and expertise of our solicitors has been recognised by the Law Society and AvMA as we continue to strive to provide the best service possible to our clients.

Kathryn Watson – April 2021

Charity Bike Ride – C2C2C

I have been meaning to do something ‘worthwhile’ for charity other than donate, which to date it’s all I have done.

So, a dozen cyclists from Cleveland Wheelers decided to do the C2C2C (East coast to West and back) on the shortest day or thereabouts, to raise funds for a bowel cancer charity.   It’s about 200 miles and we did it on Saturday 13th December setting off at 5am from Saltburn by the Sea going over to Morecombe on the West coast and returning, getting back to Saltburn at about 8am.

The weather was not too good for most of the ride and without a support vehicle with our food, dry clothes and to help with a couple of mechanicals (including a spare wheel for someone’s broken spoke) it would have been intolerable!

Bowel cancer is close to my heart.  My Brother is currently battling it, very bravely.  We have raised about £13,000 which far exceeded our expectations and thank you to all who donated.  Below is the link which has some nice pictures of the training and actual ride and explains why we chose to do it in December rather than in the sensible Summer months.  Andy is the man who started the challenge and set up the page.  His Sister is in the same position as my Brother:

https://www.justgiving.com/fundraising/andrew-curson2

           

Hilton Armstrong – February 2021

Public support for Clinical Negligence Claims during Covid-19

At the beginning of the outbreak of Covid-19 there were calls by some medical defence organisations for doctors not to face liability for negligence occurring during the pandemic.  This approach has been adopted by some States in the USA however it has not garnered much endorsement and in response to this, the Association of Personal Injury Lawyers (APIL) commissioned YouGov to undertake research on the topic of Covid and clinical negligence claims.

The results confirmed that there is strong public support for the principle that those injured by the NHS should be compensated by the NHS and that the standard of safety should not change.  In fact, the level of public support for compensation has increased and few support the proposal that compensation should not be available during the pandemic.

The most recent information from one particular defence union for doctors and GPs (not including hospitals) is that they have received over 2,500 complaints and notifications of adverse incidents.  Some of these have been accelerated to the GMC to investigate.

Unfortunately unacceptable and substandard treatment is still occurring irrespective of the pandemic and any patient injured as a result of such treatment should be appropriately compensated.  Claims are continuing to be handled and commenced and we would advise anyone contemplating bringing a claim not to delay contacting a specialist solicitor for advice.

Ashleigh Holt – January 2021

Awards for Armstrong Foulkes!

I am delighted to say that despite a very difficult year for everyone in the UK our staff and solicitors have worked tirelessly to progress current client’s claims and to advise new clients as they approach us. The quality of our advice and service has been recognised again by both clients and others we work with. I am proud to confirm in the last few months we have received the following awards:

Chambers & Partners

The Chambers & Partners Guide to the best lawyers in the UK is released annually. We have been included for many years and recommended as a Top Ranked and Leading Firm in Clinical Negligence work in the North East. You may have seen this logo on the home page of our website. We are proud to announce that we have once again been recognised in this Guide as the only Band 1 (top ranked) firm for Clinical Negligence in the Tees Valley Area and all 4 of our Partners have been individually recognised as specialists in their field of work. Joanne Davies now joins Hilton Armstrong as a Band 1 specialist, Ashleigh Holt & Kathryn Watson as Band 2 Specialists.

The firm is described as a “Stellar boutique firm with outstanding expertise in clinical negligence claims” and Solicitors at the firm are ‘brilliant, friendly and easy to access’,…….Sources praise team members for ‘really putting clients at ease regarding the whole process,’ also adding that they ‘definitely provide a good, personal service’”.

Our solicitors are equally individually recognised for their work with very positive reviews from those interviewed:

Ashleigh Holt is “very capable and has good relationships with clients.”

Joanne Davies is  a “’well-organised solicitor who runs cases very well’….Sources also appreciate her ‘very close attention to detail’.”

Kathryn Watson “receives acclaim for being ‘a solicitor who really thinks about and understands her cases with a level of depth’.”

Hilton Armstrong is “empathetic, approachable and very understanding,”.

The full review of the firm can be found at https://chambers.com/department/armstrong-foulkes-llp-clinical-negligence-mainly-claimant-uk-1:140:16346:1:162233.

Legal 500

Again in this prestigious guide to the UK Legal Profession, following interviews with clients and barristers all of whom have experience of our firm’s work we received praise for the quality of our advice and service. We are ranked as one of only three Tier 1, top rated firms in the North of England for Claimant Clinical Negligence work. Both Hilton Armstrong & Joanne Davies were also recognised as “Leading Individuals” in their speciality and the firm is applauded for being a “Highly specialised boutique” where “There are many solicitors in this practice who are very knowledgeable, professional, understandable and reachable.They also confirm that “They give you a very personal service and have a professional yet caring attitude.

Kathryn Watson is praised as a “Next Generation Partner” who “genuinely cares about her cases and engages in the fine detail. She really understand the needs of clients, and is skilled at steering them through some tough decisions” and Joanne Davies is noted to be a solicitor who “thoroughly understands the needs of her clients”.

Again the full review can be found at https://www.legal500.com/c/north/insurance/personal-injury-and-clinical-negligence-claimant/.

A message from us

We are very pleased and proud to be included in these directories recognising experts in their field of law in the UK especially as the reviews come direct from clients and from other legal professionals who have particular experience of our service. We strive hard to provide each client with a personal approach and to recognise that at the time they approach us it is often a very stressful and complicated period in their life and we do our very best to support each client in every way possible. If we can be of any assistance to you please do not hesitate to contact us.

Joanne Davies – November 2020

NHS Resolution Annual Report – costs of clinical negligence claims down for 2019/20

NHS Resolution, the body responsible for managing claims on behalf of hospital Trusts and now GP practices, released their Annual Report in July for the period 2019/20.  The figures have not been widely reported so despite what we are often told by the press, you may be interested to learn that the total cost of clinical negligence claims in this period, including both sides’ legal costs, VAT, court fees, experts fees and compensation, was down from the previous year by almost £36 million and the entire cost of claims made up less than 2% of the entire NHS budget for the same period.  It remains the case that the majority of the cost of all claims arises from babies who have suffered brain damage at birth due to negligence and need a lifetime of care and support.

In 2019/20 11,682 claims were reported and 15,550 were settled.  Usually, there is a significant time lag of anywhere between 1 – 4 years between a case being reported to it being settled.  In this recent period, almost 2/3 of cases were settled on behalf of the Claimant.  As an experienced claimant clinical negligence litigator, one of the reasons for such a delay between reporting the claim and it being settled is because of the Defendant’s behaviour and in particular early denials of liability.

By the time the Claimant’s legal team is ready to notify NHS Resolution of a claim, in most cases they will be confident of their case having already carried out the necessary investigations with their medical experts.  Therefore these early and probably unjustified denials of liability simply result in the Claimant playing the only hand left available to them and starting formal costly court proceedings.  The claim then falls into the quagmire that is the court’s case management process with the most common outcome being that the claim settles in the Claimant’s favour.

In 2019/20, NHS Resolution introduced a new performance measure specifically to consider their “Repudiation Failure Rate” i.e. how many claims they initially denied and then went onto admit or settle in the other party’s favour.  NHSR did not meet their target but accept this is still a work in progress. Unsurprisingly they also did not meet their target to resolve claims without the need for court proceedings.

While every effort is being made to reduce Claimant legal costs by way of costs budgeting and the rolling debate of fixed costs, NHS Resolution is still failing to properly assess risk and trying to battle on at the tax payers expense.

Clinical negligence claims are complicated and can be lengthy and drawn out but in many cases the injuries caused by clinical negligence are life changing and injured patients are left with no prospect of the situation being reversed.   If this happens to you, a friend or family member, you should look to get specialist legal advice.  While we may not be able to restore your health, we may be able to make you more comfortable and afford you the means to cope and manage.  Please don’t hesitate to get in touch.

Ashleigh Holt – October 2020

Success Rates when you sue the NHS – 2020 update

The latest NHS Annual Report provides some interesting facts that don’t always make it into the mainstream media.  For example:

  • The number of claims made in 2020 was just over 11,000 and virtually identical to the previous year and down from a high of 12,000 in 2013.
  • About 60% of claims made result in the payment of compensation.
  • If a case settles before court proceedings are started then the success rate is 50%.
  • If proceedings have started this increases to about 80%.
  • However if the case goes as far as a Trial the chances of success are only about 20%.

The figures are more or less in line with the previous year with one notable exception; Defendants are winning more cases at Trial.  The number of cases going to Trial is the same (about 60) but the Claimant only won 13 as opposed to 22 the year earlier.

Hilton Armstrong – October 2020

Progressing Claims in a time of Coronavirus

As lockdown begins to be lifted,  everyone wonders what will be the new “normal” and the same applies to the legal system and clinical negligence claims. We are pleased to say that it is now possible  for all procedural aspects of claim up to an including a Trial can be completed, but with some slight changes. I will set out below the changes we have noted, to give you an idea of what to expect:

  • Appointments – whilst we all prefer face to face appointments, in the current pandemic this is not possible and even when this restriction is fully lifted we appreciate our clients, many of whom have medical issues, may not feel comfortable with this for some time. As a result we have the facility to arrange video calls or to conduct appointments by telephone and can offer this to any clients. Please feel free to ask about this.
  • Delays – some steps in a case such as applying to a hospital for records can take a little longer. Under the circumstances we will continue to chase these up but are finding these steps are taking longer than expected due to the demands on the NHS, GPs and other medical professionals. We are not concerned by this and will keep you updated on when we apply and when the records come in.
  • Medical Evidence – In the course of investigating the case we need to obtain the views of independent medical experts and as many of these doctors and nurses also work in NHS roles and are in high demand at the moment getting their reports and views on the case can take a little longer than usual. Again this is entirely manageable but just may take a little longer than usual. We will keep you updated on when these reports are due.
  • Medical Examinations – As part of the investigation into cases our medical experts often need to meet with our clients to assess injuries and medical needs. Many of our experts have now started to offer these appointments again, albeit socially distanced and with appropriate Personal Protective Equipment [PPE]. However, if as a client you are concerned about this you should speak to your solicitor as there are many ways in which this can be handled, including some experts assessing you by video call, depending on your injuries. In other cases it may be possible to simply delay the examination until a later date.
  • Court Hearings – all hearings whether they are short or full trials have been continuing in lockdown, conducted by telephone or in some cases for more important hearings by video conferencing. If your attendance is required we will make all of the arrangements to ensure that this is possible.

I can therefore reassure you that there is no reason why a clinical negligence claim cannot progress in this unprecedented time. We are well aware of the uncertainty surrounding life and the concerns our clients have in this unusual time are important to us. You should not hesitate to tell us about your worries and we wish to reassure you that they will be taken into consideration and we can work with you to ensure that we can find a solution that works for both you and your claim. If you have any questions at all or require any reassurance about how your claim will proceed please do not hesitate to contact us on 01642 231110.

Joanne Davies – July 2020

Second Opinions – how to get them

A lot of what Doctors and lawyers tell you is their opinion and not necessarily factual.  As professionals we need to exercise our judgment based on our experience.  Often what we say is not what you want to hear, but it is our job to tell it as we see it.

So, for example your doctor may tell you that after looking at the scans your cancer is inoperable and only palliative care is required.  Or, the slipped disc in your back requires surgery that may result in you having to give up sport or work.

From the patient or client’s point of view sometimes this can be hard to comprehend and accept.  So what can you do if you are not convinced by what your doctor has told you?  You need to follow these steps:

  1. Ask the doctor to explain again. Step by step, and slowly.  Are they absolutely certain that their view is correct?  At this point your doctor will probably accept that there is a range of opinion but go on to explain why they think they are right.
  2. If you still feel unconvinced by their explanation ask them if they would object to you obtaining a second opinion. They are unlikely to disagree.  Usually they will recommend one of their colleagues, or alternatively you may have your own idea of who to go to.
  3. If your treatment is under the NHS it is even possible to choose a doctor from outside the hospital you are being treated at. If that is the case you would need to contact them and make arrangements for a consultation.  If you are paying privately then you would have to pay for the second opinion.
  4. When you see the new doctor after a discussion they will give you their own opinion. It may be the same as your original doctor or it may be different. If different you will need to talk about transferring your care to the new doctor.

It is important to understand that by asking for a second opinion you are not falling out with your doctor.  They will not be offended at all.  On the contrary they will probably encourage it as they will feel a lot more comfortable about your intended treatment if another doctor agrees with them.

Hilton Armstrong – June 2020

Hospital tells unsuspecting parents we may have caused brain damage to your baby during birth!

Since 1 April 2017 all NHS Trusts have been required to report to NHS Resolution, the body which has responsibility for managing clinical negligence claims against Trusts, of any incidents of babies born at term (from 37 weeks) with a potentially severe brain injury diagnosed in the first 7 days of life following labour.  These reports have to be made within 30 days under what is known as the Early Notification Scheme.

This relates to any baby who falls into the following categories:

  1. Was diagnosed with grade III hypoxic ischaemic encephalopathy (HIE) or
  2. Was therapeutically cooled (active cooling only) or
  3. Had decreased central tone AND was comatose AND had seizures of any kind

It is up to the clinical teams to advise the Trust’s legal department within 14 days of any such cases and then for the legal department to file the report.

NHS Resolution reported on their findings of the first year of the Scheme and published them in September 2019.  This confirmed that over 800 cases were reported of which 746 of which were eligible.  This represented 0.12% of all births.  In February 2020, Armstrong Foulkes LLP were told by a representative for NHS Resolution that there had been 50 admissions of liability to date.  The report concluded that most of the injuries to these babies were caused by problems with fetal monitoring.

What has become apparent is that in many cases, families do not know that their case has been reported or that the treatment they received is being investigated despite each Trust being required to comply with the duty of candour and keep families updated and offer apologies.  In fact, less than half of the 746 cases were reported to the families at the same time as they were to ENS.  Armstrong Foulkes is aware of instances of families only learning of the Early Notification Scheme some two years after the birth of their child.  This is particularly worrying and it is concerning to us that families are not being invited to be part of the investigation process.

The initial risk assessment on whether there is likely to be a finding of negligent care is done by the Trust.  If the Trust assesses a case as ‘likely’ to have involved negligent treatment then NHS Resolution will pass the matter directly to Solicitors who work for the NHS to begin a liability investigation.  Only 9% of cases were reported under ENS as likely in the first year.

For those cases assessed as ‘unlikely’ to have involved negligence or where it is ‘possible’ that there was negligent treatment, then NHS Resolution will do a review.  If a case is re-categorised as ‘likely’ or ‘possible’ it will go to NHS solicitors.  45% of cases were re-categorised in the first year!

Once a decision is made whether to admit liability or not then the decision is communicated to the family by the Trust.  Under the Scheme, families should be advised to get independent advice and should be signposted to Action against Medical Accidents, known as AvMA which is the UK charity for patient safety and justice.  In February 2020 however, a spokesperson for AvMA said that they were not aware that AvMA had been contacted by anyone who had been signposted to them under the scheme.

The aim of the scheme is to identify cases involving negligent care as early as possible and provide answers and support, including financial support to families earlier as cases involving significant brain injuries at birth do take a notoriously long time to investigate and conclude.  However, it is imperative that families are a) involved and b) have access to independent legal advice and representation to ensure that the scheme is transparent and fit for purpose.  This remains to be seen.

As a specialist clinical negligence firm, our concerns are that this scheme does not go far enough and is not being adequately publicised.  Also, we are concerned that families are made aware that they have the option of seeking legal advice irrespective of the scheme and regardless of what the scheme concludes.

You do not need to wait to be contacted by the Trust or someone on their behalf.  If you are concerned about treatment that you or your child received at the time of their birth or any time then you are still entitled to take matters into your own hands and get independent advice from specialist solicitors.  We are here to help.

Ashleigh Holt – May 2020

Coronavirus – Are you still open and what happens to my claim?

Is your office still open?

This is a strange and unusual time in our Country’s history. Here at Armstrong Foulkes we are committed to our clients but we also value the health and safety of our staff. We have therefore made some changes to the everyday running of our office during the current Coronavirus [COVID-19] Pandemic and set out below is a summary of the changes:

  1. We have changed our opening hours. The office is now manned between 10:00am and 4:00pm. This allows us to reduce the time our staff are out of their homes.
  2. Our clerical staff are rotating their time in the office to minimise their exposure to others. We are therefore running on a skeleton staff in comparison to our usual levels, please bear with us if your call takes longer to be answered or there is a delay in a response.  We will endeavour to get back to you as soon as possible.
  3. Our Solicitors are working remotely in their homes as much as they can, but remain contactable by e-mail or by telephoning our office.  Our clerical staff will ensure your message is passed on.
  4. To maintain social distancing as advised by the Government our office is now closed to the public including our clients.
  5. The building in which our office is located is now also closed to the public. If you need to drop any letters off you can use a post box located on the outside of the building to the left of the main doors as you approach.

This is an unprecedented and uncertain time in which recommendation may change. We will continue to keep the measures for our office and staff under review. Please check our website for updates.

How will this affect my claim?

We remain committed to our clients and ensuring your claims continue to be progressed, as our solicitors are still working daily on their cases we can reassure you that there will be no negative effect on your claim. We are however conscious of the demands on the NHS at present and cases in the early stages may see some delays as we are generally postponing applications for medical records.

For cases in the later stages of investigation or where Court Proceedings have been issued we can confirm that Defendant’s solicitors are also working remotely and so claims continue to be progressed. The only effect we envisage is that things may take a little longer than usual. For example, our medical experts may take longer to reply to us if they are working on the Coronavirus “Front Line” in hospital, similarly the Courts are prioritising certain types of work and we may find they take longer to deal with clinical negligence claims unless it involves an urgent or time sensitive issue. Our solicitors all remain well aware of deadlines and the work needed on your case and will continue to ensure nothing is missed.

If you have any worries or concerns about your case, please do not hesitate to contact your solicitor who would be happy to reassure you and answer any questions you may have.

Joanne Davies – April 2020

Delay in diagnosis of Lung Cancer – Judge in High Court Trial found in Claimant’s favour

Whilst many clinical negligence claims are defended, very few go all the way to trial for a Judge to determine the outcome.   This is because a claim has to go through many stages before trial, all of which are aimed at narrowing the issues between the parties and encouraging settlement.

In February, one of our cases went to trial at the Royal Courts of Justice in London.  The case concerned a delay in diagnosis of lung cancer.  K had attended hospital in May 2016 with shortness of breath.  A chest x-ray was performed which showed a lesion in the lung and advised further investigation.  Unfortunately this report was not acted upon and K was sent home.

In November 2016, he returned to hospital, again due to shortness of breath, and a further chest x-ray was performed which showed the lesion had increased significantly in size since the x-ray in May.  Further investigations were undertaken and K was diagnosed with lung cancer.  Unfortunately, he died in February 2017 shortly after his first cycle of chemotherapy.

The hospital admitted straight away they should have acted upon the x-ray report of May 2016 and this would have resulted in K’s cancer being diagnosed 6 months earlier.  The dispute arose out of the difference earlier diagnosis would have made; our expert oncologist was of the view K would have survived 8 years with earlier diagnosis, the Defendant was of the view he would have survived an additional 2 years.   This made a significant difference to the amount of compensation due, much of which comprised damages for financial dependency for K’s widow, T.

Despite every effort to settle the claim before trial, this was not possible and a 3 day trial in the High Court took place in February.  Our expert was compelling on the stand and the Judge found his evidence more persuasive than the Defendant’s expert which meant T was successful in proving her claim as alleged.  Although it would have been far better for T to have the claim settled earlier and to have avoided the ordeal of attending trial, as the Judge awarded T more compensation than she had offered to settle the claim ahead of trial, she was also awarded a 10% increase in her compensation to penalise the Defendant for not accepting her earlier offer.  A 6 figure settlement will not ease T’s pain of losing her husband but it will now give her financial security for the future.

Anything can happen at trial as it really is the unknown.  We are reliant on one Judge agreeing with our view of the case over the Defendant’s.  However, as these cases rely so heavily on the experts and their evidence, we make sure we instruct the best experts with the best reputations and scrutinise their evidence throughout the claim.  Whilst there is no guarantee we will win should a case go to trial, and in the vast majority of cases they settle beforehand, we do all we can to ensure we stand the best chance possible of succeeding with the claim.

If you or a family member would like to speak to a solicitor for some free, no obligation advice, please contact us on 01642 231110.

Kathryn Watson – April 2020

Coronavirus [COVID 19] & Appointments

We recognise that many of our clients instruct us and use our services when they are recovering from illness or injury or are perhaps living with compromised health and immune system. Although we wish to reassure all of our clients of the hygiene and health in our firm as the news of the spread of coronavirus [COVID-19] continues we are aware that clients vulnerable to infections and with weakened immune systems may be nervous of attending public places, including our office. We strive to put our clients’ needs first and should you feel this applies to you please call and speak to your solicitor about this and wherever possible we will try to conduct appointments by telephone if you require this. There will be some appointments that necessitate some clients to attend in person, but again we can look to make arrangements that will reassure you of your health and safety. Please don’t worry about approaching us about this or simply fail to attend a planned appointment, if you are at all concerned call us and together we will find a solution that suits everyone.

Joanne Davies – March 2020

Claims data from South Tees Hospitals NHS Foundation Trust

Our latest FOI request reveals some interesting information:

  • The Trust received 173 requests for medical records from solicitors in the year ending 5 April 2019. This is up 60% on the previous year.
  • They received 83 formal letters of claim, up 36% on the previous year.

I suspect that the increase is probably down to more aggressive marketing from Claims Management Companies (these are not solicitors).  These Companies advertise heavily on TV and the internet and encourage patients to pursue claims.

National figures confirm that the overall number of paid out claims do not change from much from year to year.  Time will tell if this trend is about to change.  If it doesn’t then the increased requests and letters experienced by South Tees is largely made up of unsuccessful claims.

Hilton Armstrong – February 2020

Kathryn Watson promoted to Partner!

We are delighted to confirm that on 01/10/2019 Kathryn Watson became a Partner here at Armstrong Foulkes LLP. Kathryn started here as a Trainee Solicitor working her way up to Associate and now to Partner. As a Partner she will share in all decisions made regarding the firm. We congratulate her on this well-deserved achievement reflective of her legal skills and her dedication to the firm and its clients.

Joanne Davies – November 2019

A 2019 Roundup

We would like to wish a very happy and healthy 2020 to all of our past and present clients and our legal colleagues who kindly and faithfully recommend clients to us as a specialist firm in Teesside handling clinical negligence claims.

In 2019 we continued to act for Claimants pursuing claims against James Cook University Hospital, the University Hospital of North Tees and Darlington Memorial Hospital to name but a few who had suffered injuries as a result of substandard treatment.  We recovered compensation for many injured parties with a range of injuries including strokes, bladder and bowel injuries.  Sadly we continue to act for too many claimants who have lost husbands and wives, parents and children as a result of negligence.

As a firm, all of our file handlers continued to be legally qualified Solicitors.  Having trained with Armstrong Foulkes at the beginning of her career and having continued working with the firm, we were delighted to welcome Kathryn Watson as a Partner in October.  We also said goodbye to a long standing member of our support staff, Honor Hogg, who retired in December.  Having originally decided to retire in 2009, she actually stayed another 10 years before deciding she would have some time for herself.  We will miss her company and her warm and attentive manner will be greatly missed by the clients she has looked after over the years.  She will always be a welcome visitor.

We retained our rankings in the legal publications, the Legal 500 and Chambers & Partners, as the only top tier and band 1 firm in our area.  The researchers for these organisations scrutinise solicitors’ firms and speak to our clients so that anyone looking for a solicitor can learn more about the firms they may be approaching to help them.  We would recommend that anyone who has suffered medical negligence check these online to make sure that the firms they contact have the relevant experience and skills to take on their case.

Finally, we would like to take this opportunity to confirm that our hard work will continue and we will maintain our support of injured parties and campaign for improved medical treatment.  We look forward to supporting our clients in the coming year.

Ashleigh Holt – January 2020

Patients owed a duty of care by non-medical Emergency Department staff

The Supreme Court in Darnley v Croydon Health Services NHS Trust has unanimously decided that patients attending an Emergency Department are owed a duty of care not just by medical staff but also administrative staff such as receptionists.

Briefly, in May 2010, Mr Darnley was assaulted and struck on the head.  He complained of a worsening headache to his friend who took him to the Emergency Department of the Mayday Hospital in Croydon where he was booked in at 8:26pm.  He was told by the receptionist that he would have to wait between 4 and 5 hours to be seen.  19 minutes later at 8:45pm, feeling worse and wanting to go home to bed, Mr Darnley left the Emergency Department without informing anyone.  At home, he collapsed and an ambulance brought him back to hospital at 10:38pm.  He underwent emergency surgery but has been left with permanent brain damage.

The claim arose out of the information given by the receptionist as it was alleged the advice he would have to wait between 4 and 5 hours was inaccurate and misleading as he should have been told he would be seen by a triage nurse within 30 minutes.  At first instance, the Judge accepted the following:

  • Mr Darnley would have remained at the hospital had been told that he would be seen within 30 minutes of arrival.
  • Following triage, he would have either been admitted or told to wait and if he was told to wait, he would have waited.
  • If he had waited, his collapse would have happened in a hospital setting and he would have had earlier surgery and a near full recovery.
  • Mr Darnley’s decision to leave was based partly on the inaccurate that he was given by the receptionist about waiting times.
  • It was reasonably foreseeable that a person told he would have to wait for 4 to 5 hours might leave without treatment and then might go on to suffer physical harm as a result.

The claim however failed as the Judge held that there was no duty of care owed by the receptionist to patients attending the Emergency Department.  This was upheld by the Court of Appeal.

However, the Supreme Court has taken a different view and has held that the question is not whether a receptionist owes a duty of care to a patient, it is the hospital that owes the duty of care and this duty is well established.  As soon as a patient arrives at the Emergency Department and is booked in, the hospital owes that patient a duty of care which includes a duty to ensure a patient is not provided with inaccurate and misleading information.  As it is the hospital that owes the duty of care, there is no distinction between advice given by clinical and administrative staff.

Although this case relates to the advice given by a receptionist at an Emergency Department, the same principle can apply to advice given by clerical staff in any healthcare setting such as at GP surgeries or transport services.  It is important to remember that whilst a number of claims for injuries are the result of treatment provided by doctors, dentists and nurses, this is not always the case.

Kathryn Watson, December 2019

Legal 500 UK Guide to Solicitors 2020 – Tier 1 Firm in North East for Clinical Negligence!

The Legal 500 UK Guide describes itself as “the leading Guide to Law Firms & Solicitors in UK” . They research firms annually in each area of law and each geographical area and prepare rankings for firms and for the individual solicitors based on their findings. They seek the views of barristers who have experience of the firm and those who work there, and on their website say “These rankings reflect detailed analysis of law firm submissions and thousands of interviews with GCs and private practice lawyers, conducted by our team of experienced researchers…” After performing this in depth research they have released their 2020 Guide and we are thrilled to confirm that once again Armstrong Foulkes LLP has been praised for its expertise in Clinical Negligence.

The firm itself has been ranked as one of only 3 firms within the North of England to be assessed as Tier 1 or the top rated for Claimant Clinical Negligence work We are also the only firm outside of Newcastle in this prestigious Tier 1, described as a “boutique clinical negligence firm Armstrong Foulkes LLP focuses solely on the claimant side. The practice specialises in high-value litigation, as well as handling extensive post-issue litigation”.

We are honoured to read that feedback from those who were interviewed is that:

  • ‘The firm provides a level of expertise and is the standout clinical negligence firm in its geographical area’
  • ‘Armstrong Foulkes is a small specialist, boutique firm focusing on clinical negligence work for claimants and does it extremely well’
  • ‘Victims of medical accidents in the north east are lucky to have them’

As well as the firm, the individual solicitors working here were also recommended. Joanne Davies for the 1st time accompanies Hilton Armstrong in being ranked as a “Leading Individual” described as “knowledgeable, meticulous and determined’” and “very good at what she does‘. Hilton Armstrong and  Ashleigh Holt are recognised for their expertise in this work and Kathryn Watson is highlighted as a “Rising Star”. These rankings can be viewed at http://www.legal500.com/c/north/insurance/clinical-negligence-claimant#table_3837.

Thank you to those who took time to answer questions about us and our work. We are honoured to receive these rankings again and grateful for the recommendations and positive feedback given to Legal 500 Guide by those who have worked with us.

Joanne Davies – November 2019

Chambers & Partners UK Guide to Solicitors 2020 – Top Middlesbrough Clinical Negligence Firm

We are delighted to announce that Armstrong Foulkes LLP has once again been recognised in the “Chambers & Partners 2020 Guide to Solicitors” for its expertise in Clinical Negligence in Middlesbrough & surrounding area. Chambers & Partners annually research in detail legal firms and the solicitors who work there. They take the views of the firm’s clients and also of barristers who work with them. They then provide rankings/recommendations for firms in each legal and then geographical area. We are proud to have been ranked in this directory as the only Band 1 firm for Clinical Negligence in Teesside.

We are described as a “Stellar boutique firm with outstanding expertise in clinical negligence claims. Represents clients on a wide range of matters, including child brain injury, surgical negligence and delayed diagnosis cases. Further capabilities handling claims concerning neonatal injuries due to negligent care, as well as secondary victim claims.”

All 4 Partners also achieved impressive individual rankings as experts in this area of Law, Hilton Armstrong, Band 1, is praised by a client who asserts “He kept me well informed and provided good advice throughout.”. Joanne Davies “is very experienced and effective, with good judgement,” and Ashleigh Holt “is tenacious, good with clients and very perceptive”, both achieved again a Band 2 ranking. Kathryn Watson is, as suggested in this guide, indeed “one to watch” who according to a client “listens to everything I say and fights for my case.”

Our profile can be found at https://chambers.com/department/armstrong-foulkes-llp-clinical-negligence-mainly-claimant-uk-1:140:16346:1:162233

We are delighted and proud to be recognised again for the dedication and expertise shown by each and every one of our solicitors and would like to thank any past and current clients as well as barristers who have taken the time to speak to Chambers & Partners researchers on our behalf.

Joanne Davies – November 2019

NHS Resolution latest annual report (2018/19)

This is the document that gives detailed audited and accurate information about the cost of claims against the NHS.  It is interesting reading and is usually at odds with what is reported in the media.  We are all led to believe that the NHS is on its knees as a result of people suing it.  Here are the facts:

  • £2.4 billion was paid out as a result of medical blunders. This figure includes damages and legal costs of both sides.  It is about 1.8% of the annual budget of the NHS, about the same as last year.
  • Bullying costs the NHS £2 billion a year.
  • Missed appointments cost about £1 billion a year.
  • Claimant legal costs have dropped 5.2% between 2017/18 and 2018/19.
  • Defendant legal costs have increased 8.3% over the same period.
  • Claimant legal costs as a % of all clinical negligence spend is now 19% – down 10 percentage points since 2016/17.

Yes, the cost of suing the NHS is high in terms of the stand-alone figure.  Yes, that money could be spent on training new doctors and nurses.  Is that a price worth paying?  Before you answer that remember the price could be zero if the NHS cut out the mistakes that even doctors say could and should be avoided.

Hilton Armstrong – October 2019

Small change in the discount rate still favours the Claimant

The discount rate is a percentage that is applied in claims where an injured person receives compensation now but this is to cover losses that they are expected to incur the future.  There is accelerated receipt of the money and the court therefore assumes that the injured person will invest their compensation and earn interest on it.

Between 2001 and 2017 the discount rate was set at 2.5%.  This was very favourable to the Defendants and it meant that if a Claimant was claiming 20 years’ worth of lost earnings the Defendants would only need to pay out just over 15 years’ worth as it was assumed the Claimant would be able to cover the missing years with the interest they had earned.

For many years, Claimant’s solicitors and organisations representing injured people said this was not good enough and that Claimants were being short changed.  They could not cover the loss with low risk investments as had previously been anticipated.

The Government, by way of the Lord Chancellor, did not look at this again until 2017 when the discount rate fell to -0.75%.

This caused a tidal wave of responses as insurance companies and the NHS lobbied for the discount rate to be reviewed again immediately as it would cost them millions in additional damages despite the savings they had previously and unjustly been making.  It was a very good time to settle claims for the Claimant as instead of recovering 20 years’ worth of lost earnings they were suddenly recovering nearly 22 years’ worth and the greater the period of loss, the greater the additional recovery for the Claimant.

In just over 2 years the Lord Chancellor announced the result of a review of the discount rate which was to be applied from 5 August 2019.  The new rate of -0.25% has increased but only marginally so, much to the chagrin of Defendants and their representatives who had expected a result much closer to the previous 2.5% rate.

While this is good news for the Claimant, it should be noted that the Government are clearly now going to review the discount rate more regularly and given the length of time it takes to settle the high value multi track cases where discount rates are applicable, there is no certainty that a case you take on today will reap the benefits of such a low discount rate by the time compensation is awarded in 4 years’ time!

Ashleigh Holt – September 2019

The First 100 Years Project – a History of Women in Law

I recently had the pleasure of hearing about this project in a talk to a packed conference from an inspiring lady Dana Denis-Smith, creator of the project. She explained that the hope is this endeavour will record in both writing and a video library the experiences of women in the legal profession since they were allowed to join in 1919 and help to demonstrate the progress made by women in legal careers over the last 100 years.

I am ashamed to admit that despite being a female solicitor I had little knowledge of the journey taken by and the hardships endured by my predecessors whose actions have allowed me to practice law today. I was fascinated to hear the stories of these women whose determination, perseverance and courage paved the way for all future women wanting to enter a career in law.

100 years ago the Sex Disqualification (Removal) Act 1919 was passed, without which women would never have even been able to  be accepted into this and many other professions previously considered only suitable for men. However, even before the 1919 Act there were pioneers fighting for the right to join this males only profession. Janet Wood in 1878 became the first female to complete a law degree despite the fact she was not allowed to be officially granted the degree she had passed with first class honours! Later came Eliza Orme who in 1879 was refused permission to sit the Law Society exams to become a solicitor. Despite this she persevered in pursuit of this career and in 1888 became the first woman to actually earn and receive the law degree she had studied for at University College London, although she could not then practice law. Finally in 2020 Madge Easton Anderson had the privilege of becoming the first female solicitor admitted to the Law Society after the passing of the 1919 Act.

The Project has researched and recorded as many of the very inspiring women and trailblazers who irrevocably changed for the better women’s opportunities in this profession. In addition to this they have taken video diaries from many inspiring female legal professionals still alive, whose stories of their fight to be given equal rights and opportunities, even fairly recently, are recorded forever for future generations. I imagine it will be hard for the next generation of women to believe there was ever a time when they had no freedom to choose their profession and that is testament to the incredible women included within this project.

The Digital Museum and all other information about this remarkable “First 100 Years” project can be found on their website https://first100years.org.uk

Joanne Davies – August 2019

Government now picking up the tab for GP errors

Historically, GPs and any staff in general practice, including nurses, needed to arrange their own personal indemnity cover with a medical defence organisation in order to indemnify them in claims against them for medical negligence.  This would be in a similar way to you or I arranging insurance cover against loss or damage caused by us or others to our cars or our homes.  However, the position for all claims arising from incidents that occurred on or after 1 April 2019 against anyone working in primary care NHS services is that they will now be handled by NHS Resolution under the Clinical Negligence Scheme for General Practice.  (CNSGP).

The main function of NHS Resolution, formerly known as NHS Litigation Authority is to manage claims made against the NHS  in England.  The main reason for the introduction of this latest scheme is to reduce the cost of indemnity cover for individual health care providers but what are the benefits and pitfalls for the Claimant.

NHS Resolution have been doing this type of work for many, many years so they are well versed in how to manage the claims and having one single point of contact for claimants will be helpful in those cases where the GP or staff member has moved on and the Claimant is having difficulty tracing them or confirming their medical defence organisation details and whether they indeed had indemnity cover.  It will also allow scope for other settlement options that weren’t open to GPs previously such as periodical payment orders i.e., where the injured party receives an annual sum for an element or elements of the claim rather than one large lump sum.  This is usually applicable in cases involving catastrophic injuries and this type of settlement can be very attractive to such injured claimants.

NHS Resolution is however not a perfect model.  We routinely see claims being defended, despite admissions of unacceptable treatment being previously made by way of complaints or the Trust’s own root cause analysis investigations.  The cases then have to be pursued and litigated increasing the costs in the claim and the amount of time it takes to reach a settlement.

At this early stage, it is too early to tell if this is a good move but what we can almost certainly guarantee is that we will hear about the increased costs to the tax payer of dealing with these claims.

Ashleigh Holt – July 2019

Success Rates when you sue the NHS

The latest NHS Annual Report provides some interesting facts that don’t always make it into the mainstream media.  For example:

  • The number of claims made in 2018 was just over 10,000, down from 12,000 in 2013.
  • Only 54% of claims made result in the payment of compensation.
  • 40% of successful claims are worth under £25,000.
  • 40% settle for between £25,000 and £100,000.
  • 20% settle for over £100,000.
  • Claimants legal costs are down 6%.

So, there is no increase in claims, half fail and of the rest, just under half go for under £25,000.  Enforcing your legal rights when something goes wrong is not bankrupting the NHS.  Don’t always believe this myth that we are in the midst of a ‘Compensation Culture’.

Hilton Armstrong, June 2019

Best Medical Claims Law Firm – Northern UK & Leading Specialist in Clinical Negligence Law 2019

I am delighted to announce that we have achieved another award recognising our achievements and specialism in Clinical Negligence in the North East of England. Armstrong Foulkes LLP were successful in being named the “Best Medical Claims Law Firm – Northern UK & Leading Specialist in Clinical Negligence Law 2019” in the inaugural SME Legal Awards. Confirmation of our award can be found at the SME News Website where the press release states

“The legal industry plays a significant role in the UK economy, not only in terms of employment numbers but their overall contribution to the national economy, exports and the UK’s trade. As such, SME News is proud to introduce the inaugural UK Legal Awards to its roster, with the intention to recognise and spotlight the very best that this innovative and competitive industry has to offer.

 As an independent awarding body, business size or reach are not the only deciding factors for our nominations. Rather we focus more on the quality of dedication and innovation within the work done and in forming positive relations with clients.

 Kaven Cooper, Award Coordinator discusses the success of this year’s programme: “It is with great pride that I present the winners of this prestigous awards programme. Congratulations to all my winners, and best of luck for the future.”  

SME News prides itself on the validity of its awards and winners. The awards are given solely on merit and are awarded to commend those most deserving for their ingenuity and hard work, distinguishing them from their competitors and proving them worthy of recognition.”

We pride ourselves on offering a “personal service” where you case is handled by experienced Solicitors practising only in this area of law and with our practice handling cases largely in the local area we can offer availability by in person to speak to your solicitor when required reinforcing our company motto of “personal care for medical claims”. We are honoured to be recognised as a leading firm in Clinical Negligence Law in our area.

Please do visit the SME Legal website for more details at https://www.sme-news.co.uk/2019-the-2019-sme-legal-awards-press-release for the press release and https://www.sme-news.co.uk/2019-armstrong-foulkes-llp for our award page.

As always do not hesitate to contact us and speak to one of our qualified solicitors on 01642 231110 on a no obligation basis if you have suffered medical negligence or have concerns about treatment you have received.

Joanne Davies – May 2019

Lexcel Award – excellence in Legal Practice Management and Client Care

We are delighted to announce that following re-assessment in February 2019 our firm were awarded again the Lexcel Award for meeting a high quality of standards in practice management and client care. The Award is made by the Law Society of England & Wales if a firm can demonstrate excellence in the ways they manage the practice and deal with clients. Once awarded there is an annual assessment and a more thorough assessment every 3 years to ensure that a firm continues to meet the requirements for this. We were first awarded this by the Law Society in 2015 and are pleased that we continue to perform to the high standards expected to qualify for this.

Our staff work hard to ensure we maintain the standards in the seven different areas that are assessed:

  1. structure and strategy,
  2. financial management,
  3. information management,
  4. people management,
  5. risk management,
  6. client care,
  7. file and case management.

In many areas we were noted to have met and also exceeded the necessary requirements. The assessor commented that the firm “was a very notable demonstration of Lexcel compliance” and that “it was a pleasure to discover all of the requirements Lexcel standard has been met and no non compliances raised”. We are proud to have qualified for this award again and will continue to strive to meet and exceed these standards in the years to come.

Joanne Davies – April 2019

The Legal 500 UK 2019 awards

We were delighted to have been shortlisted for this prestigious national award.  We didn’t win it but managed to get down to the final 8 firms in the country! The category we were in was:

  • Insurance: Individual: outside of London of the year – Hilton Armstrong

According to Legal 500 “Over many months of thorough research, we have conducted 70,000 interviews with in-house counsel, law firms and sets in the UK to pin-point the most capable, expert practitioners and firms operating at the top of their game across a number of different business sectors. The awards are unique in the legal industry as they recognise each element of the profession equally, representing the very best law firms, chambers, silks, in-house lawyers, business leaders and general counsel operating within the UK market”

The full list of categories is available  here:

The shortlists for the law firm awards are available to view here: https://www.legal500.com/assets/pages/awards/uk/2019/uk-2019-firms-shortlist.html

Hilton Armstrong – February 2019

Favourable changes in claims for surrogacy

As a firm we have previously acted for clients who have lost the ability to conceive and carry a child naturally as a result of medical negligence.  Until very recently our hands have been tied as to what our clients could claim for.  We have been able to recover as compensation the costs of IVF treatment and in some cases for our clients to engage a surrogate in the UK to carry a child on their behalf and the expenses associated with this but there are strict limits which reflect the current law in the UK which in turn have meant a limit on compensation levels.

Despite surrogacy becoming increasingly popular and accepted, the law in the UK has not quite kept up with this so while surrogacy is legal, it is also restricted, particularly when compared to the laws in other countries such as the USA.  Notably:

  1. In the UK no one can profit from surrogacy.  Therefore the surrogate can only claim her expenses.
  2. In the UK, once the child is born, the surrogate is regarded as the legal mother.  This is even the case where the surrogate has carried someone else’s biological child.  A court order is required to give the intended parents the correct legal status and it is possible for the birth mother to refuse to part with the child.
  3. In the UK, the surrogate will chose the parent/parents she wants to assist.  This is often done at “parties” which can be intimidating and frightening for couples who have already been dealt a vicious blow.

In the recent case of XX and Whittington Hospital NHS Trust (2017) EWHC 2318 QB, a High Court Judge held that XX’s claim for the expenses of using a surrogate in California where commercial surrogacy is widely accepted and legal were not recoverable because commercial arrangements in the UK were illegal and it was against public policy.  He therefore limited XX’s claim to using her own egg’s and a surrogate in the UK and the associated costs of that.  The total compensation he allowed for this was £74,000 which was intend to produce two children.

Despite the damning judgement, the Judge did suggest that the Supreme Court which is the final court of appeal in the UK may see things differently.  XX was therefore allowed to appeal this decision and the matter was heard at the Court of Appeal in November 2018.  The outcome was that her appeal was successful and it was held that she should not be barred from recovering reasonable compensation for her loss which would include the costs or entering into a lawful commercial surrogacy contract in California.  She would not be breaking any laws.

This is an exciting development in this area of the law.  Claimants from the UK who need to engage a surrogate can now claim the costs entering into a contract with a surrogate in the USA who essentially carries and gives birth to other people’s children for a living.  Claimant’s will now no longer be restricted to having to use their own eggs but will be able to use donor eggs from a surrogate of their choice or another donor and they will be able to return to the UK with the child legally theirs.

The obvious downside to this in terms of the “public purse” is the difference in cost.  In the USA, to produce two live births via a surrogate the associated costs will run into perhaps hundreds of thousands but to someone who has been told they will not be able to have a child, no amount of compensation can restore them to how they would have been but for the negligence.

If you have been affected by infertility as a result of failed or unacceptable medical treatment, please contact us to discuss this further.

Ashleigh Holt – January 2019

Top rankings again for Armstrong Foulkes LLP!

We are delighted that once again, we have received the top ranking in 2 prestigious guides to UK solicitors; Chambers & Partners and The Legal 500.  These rankings, which we have held for many years, are reviewed each year following interviews from clients and legal professionals with whom we work.

We are the only firm in the Teesside area to be awarded a Band 1 ranking for Claimant clinical negligence work by Chambers & Partners and we have also been awarded a Tier 1 ranking in The Legal 500.  We are described as a top-quality boutique with a superb reputation for complex clinical negligence claims and expertise in a wide range of matters”.  Our solicitors are praised for being “friendly, prompt when communicating and have really good specialist knowledge of their subject” and that “nothing fazes them and they obtain good results for their clients, who they place at the centre of each case.”

In these publications, Hilton Armstrong is described as “a tough and determined litigator” with “excellent judgement” who always explains matters clearly, is always approachable and keeps us informed as to what is happening and why.”

Joanne Davies is hailed for being “extremely meticulous” with clients reportedly being particularly impressed by the “very proactive, clear and understanding” way she handles claims.

Ashleigh Holt, who is described as being “experienced and intuitive” is applauded for conducting litigation “with exemplary vision and skill”. Interviewees report her to be “very organised, engaged with the issues and understanding of the situation.”

Kathryn Watson is also recommended with sources admiring “her knowledge and client service” with one client reporting “you can tell that she cares.”

We are proud to continue to hold top rankings in these two reputable publications and are gratified to receive such positive feedback, particularly from our clients as their opinions are what matter to us most.

If you or a family member have concerns about any aspect of medical treatment and would like no obligation advice from one of our solicitors, please do not hesitate to contact us on 01642 231110.

Kathryn Watson – December 2018