Save On Clinical Negligence, at the Victims Expense?

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The Government's proposed savings on clinical negligence claims will put access to justice beyond reach for many victims of medical negligence.

The media is again obsessed with the myth of "greedy" Clinical Negligence lawyers who use the NHS as a "Cash cow". The Guardian has quoted un-named DOH sources saying that a lawyer "pocketed" £175,000 whilst the patient received a fraction of that in damages. The Sunday Times gives similar examples. Reports of "outrageous lawyers' fees" appear in the popular press every day. But there is no mention why the victim's legal costs are so high and this is likely a consequence of the Hospital Trust, it's insurers and Lawyers fighting a case, perhaps over many years, then having lost and been ordered to pay the victim damages. I prefer to describe the litigant as the "victim" rather than the "Claimant" because that's what they are.

Perhaps another way of reporting the case would be to say that the NHS was forced to pay £175,000 in litigation costs because its Lawyers unreasonably decided to fight a case which should have been settled at the outset for a fraction of that cost thereby avoiding a substantial costs liability to the hard pressed Tax Payer! Should the victim have simply abandoned his or her claim because the NHS and its Lawyers chose to deny liability and fight? Why should the injured patient, who is after all the true victim, be denied Access to Justice? If an NHS Trust and it's Lawyers unreasonably refuse to accept liability and fight a case (with consequent costs liabilities) why should the victim and his or her Lawyers be blamed for those costs when the case is won?

Stop Fighting and Lower Costs

The simple way for the Government to save mounting litigation costs is not to "cap" the victims lawyer's fee but to instruct NHS Trust's and insurers to accept liability in justified claims and put forward realistic settlement proposals at an early stage. A victim should not be blamed for mounting litigation costs when the NHS Trust and its Lawyers continue to unreasonably fight claims which should be settled. The Government is essentially proposing that thousands of victims of medical negligence should be denied Access to Justice under the pre-tense that it wishes to clamp down on "outrageous" lawyers' fees. That is a myth which must be dispelled immediately and the Government's proposals must be seen for what they are, the creation of a two tier system of justice, one for the wealthy and one for the poor (the latter offering little or no Access to Justice at all).

Let's look at what the Government's latest proposals really mean for victims of Medical Negligence (and believe me when I say it is the patients who will be the true victims of the Government's proposals and not the lawyers). The proposal outlined includes fixing legal costs to a percentage of the compensation won for patients in claims up to £100,000 (although what the percentage would be is not stated). For a patient to recover damages of £100,000 they will have been the victim of not only medical negligence but will have suffered a devastating injury which will have had a dramatic impact not only on their own lives but that of their family and loved ones as well. If a Hospital Trust and its Lawyers decide to fight the case to a contested Trial the victim's litigation costs can be expected to be upwards of £200,000 or more. A significant part of those costs will include the instruction of independent medical experts who will ultimately be called to give evidence on the victim's behalf at Trial. Let's then suppose the victim wins his or her case and is awarded damages of say £100,000. There is no indication at this stage as to what percentage of compensation won legal costs will be fixed at but let's suppose the percentage is 25%. This means that the victim will only recover £25,000 in legal costs. It would be nonsensical to expect any lawyer to take on a case in which liability is denied and which is likely to then proceed to Trial since the level of costs which the victim could then recover if the action were successful would barely cover the cost of instructing medical experts never mind their lawyer's fees. Were such a system to be introduced lawyers would have to think long and hard about whether or not they could take on any case in which liability was in issue which had a value of £100,000 or less.

The implications for victims of medical negligence and their families is quite startling.

Thousands of patients in the UK injured by Hospital negligence each year will be denied Access to Justice. It is important that the public be educated as quickly as possible to the Government's true agenda. It is very easy for the Government to put up a smoke screen of "outrageous" lawyers' fees. It is open to any NHS Trust and its insurers to make early Part 36 offers to settle claims which will protect the NHS (and tax payer) from costs liabilities. If the NHS chooses to unreasonably fight a claim which should have been settled at an early stage then it should not be allowed to complain about the victim's "substantial" litigation costs afterwards (which will have been of the NHS Trust's own making).

Access To Justice

We are well on the way to a two tier system of justice in the UK. This has been brought about by the Government's erosion of Legal Aid (Legal Aid has now been withdrawn from all but a few Clinical Negligence cases including those cases where children have been victims of Clinical Negligence) and an astonishing increase in Court fees with a Court fee of £10,000 now payable on claims with a value over £200,000! How can this possibly afford Access to Justice to the ordinary man in the street?

The Government should be aiming its sights on Lawyers who defend Medical Negligence cases which should be settled (remember litigation costs are only payable to a claimant who wins) rather than trying to penalise the victim who wins a claim that was contested.

Jeremy Bentham wrote in 1793, "The Statesman who contributes to put justice out of reach... is an accessory after the fact to every crime. Every villain may hail him brother, every malefactor may boast of him as an accomplice." These words have never held greater meaning. When I became a lawyer 25 years ago I could not have imagined that we would now find ourselves in a system where Access to Justice is the providence only of the wealthy.

A Timely Reminder

I recently settled a case which like so many other cases before graphically illustrates why mounting litigation costs are a consequence of unreasonable Hospital Trusts fighting claims which should have been settled at the outset.

My client came to me regarding treatment she had received at Stoke Mandeville Hospital where she had given birth to her child in January 2013. It was found that my client's consultant failed to make sure that the suturing (stitching) of the C-section was performed by, or assisted by a qualified practitioner.

This meant that the suturing was not done properly, leaving our client to suffer from immediate pain which was becoming progressively worse. Eventually, the C-section wound broke down completely and our client's small bowel could be seen coming out through the wound. This was a direct result of the faulty technique used to suture the wound.

An operation took place to try to correct this, which meant our client experienced further severe pain, she was on morphine and needed a catheter as she wasn't able to walk.

Physical and Mental Damage

As you can imagine, my client is now left incredibly distressed following this ordeal. Sadly, she still experiences nightmares, flashbacks and significant psychological symptoms with elements of Post-Traumatic Stress Disorder (PTSD) caused by witnessing her wound break down and bowel protrude. My client also suffered adjustment disorder, fear of becoming pregnant again – and indeed, a fear of hospitals altogether.

After a lengthy battle with the NHS Trust, we were able to secure our client £12,000 in compensation for the trauma she endured and still continues to live with. The legal costs in this case came to around £100,000; an extortionate figure accrued purely because the NHS failed to accept liability for its own actions, and failed to settle the case at an early stage, forcing my client into litigation with resultant costs.

How it would be fair to deny people justice in this situation purely because of the NHS's failure to admit responsibility is beyond me.


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