Press v Medical Negligence Lawyers: How Did It Come To This?
A Specialist Medical Negligence Lawyer at Simpson Millar LLP explains why the Legal Profession needs to act quickly to make peace with the press which is being cleverly manipulated by Government spin and misinformation about litigation costs.
Bowel Falling Out And Legs Amputated
As Medical Negligence lawyers we work hard on behalf of patients and their families, many of whom have suffered the most devastating injures or death of loved ones as a consequence of hospital blunders, to obtain the justice they deserve. Bowel falling out because a caesarian wound was not stitched properly, a patient waking from minor surgery to discover their legs had been amputated and a young girl left blind and brain damaged because of a failure to recognize a blood disorder. The list of injuries suffered by patients goes on. Surgical equipment left inside a patient after an operation, organs mistakenly removed and arteries severed. I have seen all this and much more! I have encountered hospital cover ups, altered and lost medical records and even disappearing doctors!
The Good Guys
It’s so easy for the press to forget we are the good guys! As lawyers we are called upon to assume the burdens of responsibility for others. To help and protect those less fortunate than ourselves is why many of us became lawyers in the first place. Like white knights we face ruthless adversaries every day of every week in the form of NHS lawyers who adopt a siege mentality of fighting even the most indefensible claims at any cost! In a constantly pressured and stressful environment we often carry the burden of emotionally charged clients and situations home with us at the end of the day. For more than 20 years I have acted on behalf of victims of Medical Negligence and in the past 5 years have won damages for victims left brain damaged or seriously injured by medical blunders worth £85 million. That money will enable families to buy in care, much needed equipment and therapy and pay for urgently needed accommodation. Only recently I acted for one family with a small child left seriously brain damaged by a hospital blunder struggling to cope whilst living in a caravan! The simple fact of the matter is that the work we do as Medical Negligence Lawyers changes lives! Yes, its official, we do good work and we change lives! We make a difference! We help those who have suffered the most devastating injuries to obtain Justice for themselves and their families. That’s fact not fiction!
So why, as the good guys, are we constantly being attacked by the Government? More importantly, why is the press just going along with it? Why has the press seemingly forgotten that it is us, the lawyers, who are the champions of Justice in the UK today and why cant the press see that it’s the Government who is using them to take that Justice away?
I was recently asked whether the negative image of lawyers in the press at the moment came about as a result of “no win no fee agreements” or the growth of claims management companies? I replied that in my opinion, neither. The press is generally unaware of exactly what “no win no fee agreements” are and I would imagine that if you asked 100 reporters what a claims management company was, the majority will either have no real idea or offer a number of different explanations, none of which would be entirely correct. Its most definitely time for Lawyers to be more proactive in stamping out any bad practice within the profession and the NAHs ethical marketing charter is a very positive move in that direction. I responded to the question put to me that I believe the negative image of claimant lawyers in the press is largely a consequence of the governments clever manipulation of the media with stories, largely myth, of “greedy claimant lawyers” which it puts out shortly before any announcement it intends to make about new policy which will affect those injured, usually in a very bad way, such as its recent announcement on capping costs for victims of hospital blunders, in an effort to justify what it knows to be is an unfair, unjust and wholly unnecessary policy, which in this case, is quite simply aimed at denying victims of medical negligence access to justice.
Misinformation And Government Spin
We need only look at the recent comment made by Health Minister Ben Gummer who said “Unscrupulously some lawyers have used patient claims to load grossly excessive costs onto the NHS and charge far more then the patient receives in compensation.” This shameful comment by the Health Minister was clearly aimed at turning the press against the lawyers who have served the public so well. Mr Gummer deliberately left out the bit about why lawyers costs often exceed a patients damages. As he knows this is because of the “siege mentality” adopted by many hospital Trusts of fighting even the most indefensible claims at any cost! The costs of medical negligence claims have been driven up by Hospital Trusts, their insurer and the lawyers who represent them! Its been forgotten that its open to an NHS Trust to admit liability at an early stage and settle the case. They rarely do so, often the patient is forced to take them to Court to obtain Justice and then the Hospital Trust either lose at trial or settle at a very late stage. The victim is only paid costs if they win! The only way to fairly reduce the costs of litigation is to make hospital Trusts accept responsibility at an early stage. Lawyers on both sides will be paid less but the patient will still obtain Justice. The Government is quite simply blaming patients for high costs when they have been forced by an NHS Trust to go to court because it has refused to accept responsibility for what it did! The Governments position is nonsensical! It appears to be the opinion of our government that if it can manipulate the press, and then the public, to believe its own spin on any issue then it can railroad through legislation no matter how devastating the impact of that legislation on the public at large. The press and the public has failed to understand this and for that we must shoulder some responsibility as we do not appear to have done enough to get across to the press and public what's been going on. It never ceases to amaze me how, even today, clients on low incomes are astonished to be told by me that their injured child is no longer eligible for legal aid because the government took it away when they were not looking!
We all saw how the Guardian recently quoted unnamed DoH sources saying a lawyer “pocketed” £175,000 whist the patient received a fracture of that in damages. This is classic government spin and deliberate media manipulation. What the “unnamed DoH source” failed to point out was that a victim of medical negligence is only paid his or her costs if they win their case. The likelihood is that the costs were so high in proportion to the damages awarded because the NHSLA and its lawyers unreasonably fought the case, possibly to trial, or settled at a very late stage in the proceedings. No mention was made of the fact that the Hospital Trust could have protected its position on costs by making an early Part 36 offer to settle! This is of course an example of why capping of victims costs to a percentage of their damages cannot work as long as Hospital Trusts unreasonably continue to fight cases. It will simply make many medical negligence cases no longer financially viable for lawyers to take on and gives the NHSLA no incentive to settle early.
Only yesterday we saw an article in the Guardian shouting “NHS sounds compensation alarm after £120,000 lawyer bill for £5000 claim”. But where were the facts behind that case? Why was it not mentioned that the only way that the costs could have been so high is that the NHS Trust unreasonably decided to fight the case, driving up costs by doing so! Why was it not mentioned that the NHSLA could have admitted liability at the start and settled the claim when costs would have then been a fraction of what they ultimately were? Why was it not mentioned that the Government introduced legislation years ago which would have enabled the NHSLA to make an early Part 36 offer to settle and by doing so it would have protected itself, and the tax payer, from this costs burden! Why should the victim and his or her lawyers be blamed in this case for the unreasonable conduct of the NHSLA in driving up costs! Should the victim have just given up or was the lawyer right to champion her. Why is the press giving such one sided coverage to an issue which will devastate access to Justice in the UK.
Capping Cost Will Prevent Access To Justice
The Governments latest proposal for capping a victims costs is completely unjustified and will deny thousands of victims of hospital blunders access to justice. When the government first hinted at cost capping four weeks ago, it was suggested this would be on claims valued at up to £100,000. Shortly before the announcement we heard the usual statistics from the NHSLA and stories from the DoH which were obviously designed to attack claimant lawyers and get the press and the public on board with the idea of costs capping by turning them against us with yet more misinformation and media spin. The statistics released showed that the NHS paid out more than £4.5bilion over 5 years for medical mistakes. About a quarter was paid to law firms to cover legal costs. What was not mentioned was that 7 of the 10 firms cited as the top earning law firms between April 2010 and the end of 2014 act on behalf of the NHS Trust, i.e. they are defendant law firms! It was also not mentioned that whilst claimant lawyers act under no win no fee agreements, which means we do not receive a penny for the work we do, often hundreds of hours over many years, unless the case is won, defendant law firms are paid either way! The statistics clearly demonstrated that litigation costs had been driven up by the NHS and defendant law firms unreasonably fighting cases which should have been settled but this fact was again lost in translation by government spin. We need to put that right and we need to do it now!
It's extraordinary that the government can make a sudden leap over a period of 2 or 3 weeks from a £100,000 cap, which was bad enough, to a £250,000 cap! Call me cynical but it seems to me that once the government realised its media spin was working to turn public opinion (yet again) against claimant lawyers on this issue it decided why not introduce a £250,000 limit instead! The DoH now estimates that in the region of £105 million could be saved but I would continue to argue that many times that would be saved by encouraging early settlement of cases! Solicitors on both sides would be paid less but victims would still get access to justice. What's happened to the voice of reason!
Most of what the public knows about claimant lawyers is what they read in the popular press or see on television. The sad thing is that claimant lawyers work incredibly hard on behalf of their clients to obtain for them the justice which they deserve. The majority of claimants are very satisfied with the service which they receive from their lawyer and I am sure would recommend them to family and friends once the case is over. In fact many clients become friends of the lawyers who represent them.
Government Refusing To Listen To Reason
We all know that any talks between the government and the insurance industry have been largely one sided, with claimant lawyers and their opinions often being excluded or simply ignored. Insurers have continuously got their own way, again and again in recent years by convincing the Ministry of Justice to legislate in their favor. New legislation, as we have only recently seen, is usually precipitated by media spin deliberately designed to cast claimant lawyers in a bad light and to turn the press and public against us. I doubt many members of the public can say they have seen a huge cut in insurance premiums as a consequence of legislation passed by the government in recent years! We all know who has benefited, its not Claimant lawyers and its most definitely not those who have been injured!
So what can be done to reverse the label placed upon Claimant lawyers? As Medical Injury lawyers we have remained silent way too long about what the government has been up to. The press and the public needs to be told exactly what this new legislation means for them, their families and loved ones if disaster strikes and it is up to us as lawyers to educate them. It is also up to us to put the press and public right on the misinformation and media spin constantly put out by the government, a task in which we appear to have failed dismally.
Not only has the government managed to turn the press and the public against us but many claimant lawyers have become so disillusioned that they are leaving the profession altogether! It is very important that we take the time to look back on the good work that we have done for our clients and the many lives that we have changed for the better. We must fight back against the governments media spin and remind the public that we are here to champion their rights and provide them, their family and loved ones with access to justice if disaster strikes. We need to educate the public and the media urgently to the fact that they are being manipulated by government spin and misinformation designed to enable the government to railroad through legislation which will deny many thousands of victims of medical blunders access to justice. The public needs to know that the government is fast creating a two tier system of justice in the UK, one for the rich and one for the poor, the latter offering little or no justice at all.
Denying Access To Justice
We need only look at the erosion of legal aid by the Legal Aid, Sentencing and Punishment of Offenders (LASPO) Bill which came into effect as of 1 April 2013. Amongst other reforms, the Bill drastically changed the nature of legal aid and had significant implications for victims of medical negligence. Prior to 1 April 2013, anyone who suffered injury or illness as a result of clinical negligence may have been eligible for legal aid. Legal aid ensured that those who did not have the means to pay for representation could still access legal support to investigate their medical negligence claim. However, since the 1 April 2013 changes, the majority of people injured in medical accidents are no longer able to apply for legal aid to fund a potential medical negligence claim and are now at the mercy of no win no fee. This means that thousands of borderline but deserving cases already fall through the funding net denying many thousands of victims of medical blunders access to justice.
The government has recently increased Court fees for claims valued at £200,000 or more, which means most serious injuries needing long term care, to a staggering £10,000! It would be bold lawyer who would gamble a £10,000 Court fee on a deserving but very borderline case!
18th Century Justice
Not satisfied with that, the government now proposes to cap costs to a percentage of any damages recovered which will make thousands of claims no longer financially viable for lawyers to take on, again denying victims of hospital blunders access to justice. The government must be stopped from pushing this type of legislation through by turning the press and the public against the lawyers who represent them. The only way this can be done is to remind the public that it is us, the lawyers, who are on their side, championing their rights and facilitating access to justice for them and it is the government who is seeking to take this right away from them! We must join forces with the press, public, and, yes, doctors to fight a common enemy on this issue before it is too late and the UK is plunged back into a system of 18th century justice!