Healthcare - market insights April 2025

Personal injury discount rate (PIDR) in England and Wales    

On 2 December 2024, the Lord Chancellor announced that the personal injury discount rate (PIDR) in England and Wales will remain as a single rate, but has been adjusted from -0.25% to +0.5%. The change became effective as of 11 January 2025.

We anticipate claimants with large future loss claims may well be advised to opt increasingly for smaller retained lump sums and more heads of loss by way of periodical payments, due to lower lump sum awards under a higher discount rate. Time will tell what balance will be struck between the forms of awards sought by claimants.

See our catastrophic injury market insights for more information.

Civil Justice Council (CJC) publish final report on the procedure for determining mental capacity published

A final report following a CJC working group’s consultation on mental capacity was published on 11 November 2024. This proposes the creation of a ‘menu of options’ for the court to ensure an appropriate approach can be adopted in each case.

The report states: “the strong view of the working group, and the almost unanimous view of the judges and practitioners whom it consulted, that there should be clear provision and guidance on the procedure for the determination of issues of litigation capacity”.

See our catastrophic injury market insights for more information.

Martha’s Rule – an update on implementation

In December 2024, NHS England announced that implementation of Martha’s Rule – a significant patient development in the NHS - is already having a positive impact.

Evaluation of the system in the 143 hospitals where it is currently being implemented will be made this year. NHS England explain that this evaluation will inform proposals (subject to government funding) to expand the system into all acute hospitals.

Patient Safety Principles published: a framework supporting the delivery of safe, effective and patient-centred care

On 21 October 2024 the Patient Safety Commissioner published a finalised set of Patient Safety Principles, following a public consultation that garnered over 800 responses.

The Principles build on the efforts to improve patient safety that have been made over the last 20 years. There has been a move away from a slow, siloed and disjointed approach. A greater emphasis has been placed on learning, and, in particular, a focus on the need to hear the patient voice has become paramount.

We believe the Patient Safety Principles will assist those in governance in healthcare. They will be a guide for those in leadership positions, not only at Board level, but also at all levels within healthcare providers. These Principles are about safe, effective and compassionate patient care, and reducing avoidable harm in a just and learning culture.

Town hall discussion on the treatment of eating disorders

In collaboration with NHS Resolution, Kennedys hosted a town hall event in Cambridge in September 2024, to discuss the provision of eating disorder (ED) treatment services across the East of England. The event served as a council of experts, including psychiatrists, gastroenterologists, primary care providers and commissioners, to discuss current practice around eating disorder treatment and to understand how services could be improved.

Whilst there are further opportunities to develop and improve services, it was clear there has been good progress with ED services in recent years. New services, such as virtual wards, have been developed to enable service users to access treatment whilst remaining at home and close to their support networks. There has also been a focus on multidisciplinary team meetings, ensuring collaboration between different professionals to provide holistic treatment and services to those with eating disorders.

Read further information on the key areas of discussion and next steps.

Lower damages fixed recoverable costs (LDFRC) scheme: clinical negligence claims valued between £1,001 to £25,000

Uncertainty remains on whether the new Government will continue with the previous government’s plans to implement the LDFRC scheme initially planned for April 2024.

In October a written question was put to the Ministry of Justice (MoJ) as to whether consideration would be given to holding new consultations regarding the introduction of fixed recoverable costs (FRC) in medical negligence cases. In response, the Parliamentary Under-Secretary of State in the MoJ explained that FRC reform is among a range of issues that are under consideration in relation to clinical negligence, with the Government to announce its position in due course.

Terminally Ill Adults (End of Life) Bill

Introduced to Parliament on 16 October 2024 by way of the Private Members’ Bill ballot, the Bill was published on Monday 11 November 2024.

The Bill extends to England and Wales only. The proposals set out a model of assisted dying that would enable terminally ill adults who are mentally competent and meet other eligibility criteria to request and lawfully receive the provision of assistance to end their own life.

Members of Parliament are currently debating principles of the Bill during the Committee Stage in the House of Commons.

The Terminally Ill Adults Bill is also a key topic in our life sciences market insights.

Case developments

Supreme Court hear ‘leapfrog’ appeal on ‘lost years’ claims

CCC (by her mother and litigation friend MMM) (AP) (Appellant) v Sheffield Teaching Hospitals NHS Foundation Trust (Respondent)

Having heard the ‘leapfrog’ appeal in CCC on 11 and 12 February 2025, the Supreme Court is set to determine whether child claimants can recover damages for ‘lost years’. The case challenges the long-standing precedent set in Croke v Wiseman [1982], which has historically prevented claims for lost future earnings where life expectancy of a child claimant is reduced; a distinction from adult claimants with reduced life expectancy.

A ruling in favour of the claimant would broaden the scope of claims brought against compensators.

Recovered damages for breach of contract

Bailey v (1) Bijlani (2) MBNA Ltd [31.01.2025]

In a notable judgment relating to negligently performed private dental treatment, HHJ Simon found both the dentist performing the treatment and the credit card provider used to pay for the treatment to be jointly and severally liable for damages.

It is a judgment that will be of particular interest to claimants and compensators alike where private treatment was paid for by credit card and / or there are concerns about appropriate levels of indemnity for the negligent practitioner.

Causation and material contribution

Tuffin v University Hospitals Coventry and Warwickshire NHS Trust [20.12.2024]

The trust admitted to negligence having failed to give the claimant an anticoagulant called Clexane following elective spinal surgery in 2015. It was agreed that as a result of which the claimant developed deep vein thrombosis (DVT) and then post thrombotic syndrome (PTS).

In 2018 the claimant underwent an above knee amputation of her left leg and alleged this was entirely a result of having developed the DVT and PTS, as a consequence of the trust’s negligence.

The court found that whilst the failure to administer Clexane resulted in the DVT, on the balance of probabilities the expert evidence demonstrated that the symptoms which had led to amputation were not caused by the DVT or PTS. The court concluded that the claimant had developed complex regional pain syndrome (CRPS), and it was this condition that had caused the symptoms which led to amputation, and further that the CRPS had not been caused by the DVT and PTS.

On the issue of material contribution the court observed that “before liability can be established the factor which is said to have made a material contribution must be shown to have added to the cause of the injury for which the claim is made.” The court concluded there was no expert opinion in support of a conclusion that the admitted negligence had made a material contribution to the symptoms that led to amputation.