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Medical malpractice

Published on 10 January 2022

In this chapter of our Annual Insurance Review 2022, we look at the main developments in 2021 and expected issues in 2022 for medical malpractice.

Key developments in 2021

The Supreme Court decision on costs in Ho v Adelekun seemed to come from nowhere but has truly struck a costly blow for those defending medical malpractice claims.

Since Qualified One-Way Costs Shifting was introduced in 2013, Insurers have had to accept that the default position in injury claims is that they will be unable to recover defence costs – even if the claimant fails in their claim (the three exceptions being: fundamental dishonesty; strike out; or an offset against damages if the claimant wins at trial but fails to beat a Part 36 offer). Defendants could, however, limit their costs exposure by offsetting any costs orders in their favour against claimants' costs orders. Ho removes that possibility once and for all. The Supreme Court commented that its conclusion "may lead to results that at first blush look counterintuitive and unfair" and "no one has claimed the QOCS scheme is perfect".

In higher value claims, the decision is less damaging because the possibility remains of offsetting defendant costs orders against damages awarded, but, in low value cases, well pitched Part 36 offers have now lost most of their teeth, and claimant lawyers may feel that they can take frivolous procedural points with impunity, as their costs are now more thoroughly insulated than even the claimant’s own damages.

To read more about the impact of this decision, click here to read James Davies' October blog.

What to look out for in 2022

The recent growth in sports injury litigation has extended its reach to claims against clinicians who work with professional sportsmen and women and is expected to mushroom over coming months.

With a group of former professional rugby players bringing a claim against World Rugby, the Rugby Football Union, and the Welsh Rugby Union for allegedly causing them to incur chronic traumatic encephalopathy and/or early onset dementia, there has been much publicity around the management of concussion in sport. Those interested in this area will observe that the players in the group action face an uphill challenge to succeed on both breach of duty and causation, and it will likely be some considerable time until the outcome of the litigation is known.

In the meantime, claimants are taking what they see as a more straightforward and direct route to recovery, by claiming against clubs and/or their doctors for failing to timeously remove players from the pitch when the risk of damage was, or should have been, known. We are already seeing (and robustly defending) such cases.  This is certainly an area to watch for insurers, who would be forgiven for previously assuming that the risk of exposure on policies for sports club medics was relatively low.

Written by Sian Morgan.

Download our full Annual Insurance Review 2022 for more insights.