18th Century Justice for Victims of Medical Negligence?


A Specialist Clinical Negligence Lawyer at Simpson Millar looks at why Government policy towards victims of medical accidents is taking us back to nineteenth, if not eighteenth century levels of 'Access to Justice'.

Unsound and Illogical Arguments

The Government's eyes appear firmly fixed on a policy towards victims of NHS medical blunders which is based on unsound and illogical arguments made by the NHSLA and its lawyers. Unless the Government lifts its eyes from its present preoccupation with myths of “greedy claimant lawyers” and a “compensation culture” and instead looks forward at the implications of what it is proposing we shall move quickly towards a disaster for the justice system which will take us back to nineteenth, if not eighteenth century levels of access to justice with the creation of a two tier justice system, one for the rich and one for the poor.

It is extraordinary to think that intelligent men and women working in Government today appear to be failing to understand the blatantly obvious. The spiralling costs of claims against the NHS is a consequence of the NHS, its insurers and lawyers adopting a “siege mentality” of fighting indefensible claims which should have been settled.

We Only Need Look at the Facts

It has recently come to light that over the past 5 years the NHS and its lawyers have cost the Taxpayer a staggering £1.125 bn fighting valid claims by victims of medical blunders which should have been settled. The Government appears not to understand that a claimant only recovers costs if a case is won. If an NHS Trust and its lawyers decide to fight an indefensible claim up to and including a contested Court Trial which they subsequently lose and the defendant is ordered to pay the claimant damages and costs, it logically follows that the claim should have been settled by the NHS at the outset. The Government appears incapable of understanding this very simple fact. Government policy instead looks at the costs payable by the NHS Trust if it loses a claim (which should have been settled) and then seeks to blame the claimant for the size of the costs and for bringing the claim in the first place! The Government's understanding on this issue is farcical.

Instead of investigating why the NHS and its defence lawyers continue to fight meritorious claims costing millions of pounds each year to the Taxpayer and in the process causing untold mental harm to those who have been injured by medical blunders, the Government chooses to blame the victims and the lawyers fighting for justice on their behalf. The Government's response to the situation has been to implement policies which will deny as many victims of medical blunders access to justice as possible and those measures have already included the withdrawal of Legal Aid, (including Legal Aid for injured children) from the majority of medical negligence cases and a staggering increase in Court fees (now £10,000 for some claims) which has already put access to justice beyond reach for thousands of UK citizens and victims of medical negligence.

Capping Costs But Continuing To Fight?

The Government's latest proposals for savings on clinical negligence claims (capping costs to a percentage of the victims damages) can make no logical sense in a system in which the NHS and its lawyers continue to fight indefensible claims (often to a contested Court Trial) causing litigation costs to spiral in the process. Capping a victims costs to a proportion of their damages cannot work whilst the NHS and its lawyers continue to fight claims which should be settled, often over many years and it quite simply beggers belief that the Government appears not to understand this basic fact. This was recently graphically illustrated in a case in which I acted on behalf of a Claimant who brought Court proceedings against her General Practitioner who had failed to properly examine her knee after a fall. The claimant had suffered a displaced fracture of the head of the fibula at the time of her fall which went undiagnosed for a number of months because the GP failed to refer her for an x-ray.

The GP refused to accept that she had made a mistake and the claimant was forced to take her to Court. The claim went to a contested 5 day Trial in the High Court. The GP was found to have been negligent and the claimant awarded damages of £9,000.00. The costs of taking the GP to Court because she had refused to admit her mistake was in excess of £250,000.00. If the Government's proposals for capping a victim's costs to a percentage of damages had been in force when this case was brought the claimant would have been denied access to justice. Let's suppose costs were capped at say 25% of the claimant's awarded damages (there is no indication at this stage from the Government as to what percentage should be applied). The claimant's costs would be only £2,250.00. How could the claimant and her lawyers have taken the GP to Court and to a contested 5 day Trial for £2,250.00! Government policy appears to suggest that the claimant should quite simply have given up on her claim and been denied access to justice. There are hundreds of similar cases.

The Government's latest proposals will quite simply deny victims of NHS blunders access to justice when ever a doctor or NHS trust unreasonably refuses to admit liability. The Governments position appears to be that those victims should be denied access to Justice on the grounds of cost, creating a two tier system of Justice, one for the rich and one for the poor.. The Government must start concentrating its efforts instead on investigating why the NHS and its defence lawyers continue to fight meritorious claims costing millions of pounds to the Taxpayer each year and look at ways of implementing policies which will make the NHS more honest and open and admit mistakes when made. It makes no logical sense for the Government to attack the victims and the lawyers who have worked so hard to obtain access to justice on their behalf. Taking us back to a nineteenth, if not eighteenth century system of justice is not acceptable.

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