Why the Plan to Cap Legal Fees in Medical Negligence Claims is Short Sighted

Jul 01, 2015
The government has published its plan to cap claimant legal fees in clinical negligence claims. 

References to the tiny proportion of claims where legal costs exceed the compensation paid to patient victims are made by government and the press, but these are few and far between. In order to succeed, the Claimant must, in essence, prove that medical staff provided care of such a poor standard that no reasonably competent practitioner at that level would have acted in that way.  
The patients I meet are often traumatised and feel that no one in the NHS is listening to them. 

The Law Society says: “these cases are often complex and require specialist legal knowledge to properly support the patient during this extremely difficult period in their life. It is critical that solicitors are appropriately recompensed for the work they do for harmed patients.

“It is therefore essential that any proposed changes to funding do not stop injured patients getting the support and advice they need following what can often be devastating injuries caused by negligent NHS care.”

Whilst Claimant solicitors do not believe that medical staff intend to cause harm, and often resources and management inefficiencies are the culprits; without support many patients do not have the strength to fight the organisation alone. 

The NHS has made tremendous steps forward towards greater openness and candour, but this is not across the board and not felt by all patients.

As any patient pursuing a claim will tell you, Claimant costs are high for a reason. Expert fees are higher and independent medical opinion is vital to even get the claim off the ground. 

Many claims which we initially investigate do not proceed as the medical expert examines the circumstances and concludes that the care was ‘not bad enough’ or the outcome would have been the same any way. Explaining this to the family of a deceased patient is not easy and is certainly not ‘routine form filing’. 

In our experience, the NHS and private contractors are more willing to contest negligence and still do not always admit mistakes at an early stage. This means cases take longer to settle. As an example, a client suffered organ failure because a surgeon used an outdated method and inappropriate material during a procedure causing irreversible organ damage. The patient suffered for three months before collapsing, requiring an organ transplant. It took the NHS over two and a half years to admit that error. 

It also needs to be remembered that some very complex but worthwhile cases receive relatively low damages awards at the end. Fatal medical negligence claims involving elderly patients can attract very low awards, ie just funeral costs. If their spouse is no longer alive the bereavement award (£12,980) cannot be paid to their children or grandchildren. Without any loss of earnings to claim the value of the claim for their death could be a few thousand pounds to cover the cost of the funeral. In either scenario, the NHS trust or medical practitioner should still be held accountable for the circumstances leading up to the patient’s death. These claims are not about finding scapegoats or situations involving known risks/complications when treating a patient. The circumstances often involve clear mistakes (wrong medication, not listening to the family who explain the deterioration in their loved one, missed observational rounds to name but a few). 

These mistakes and institutional problems must be revealed. The complaints system remains an internal process unless the patient involves the Parliamentary and Health Service Ombudsman. The only public means of raising these issues are a claim or a complaint to a regulator such as General Medical Council, but this relates to an individual doctor not a systemic or team-wide failure.

These claims still involve complicated circumstances and simply cannot be investigated and pursued without accumulating legal costs should these Claimant patients go unheard and unanswered. The court has the power to limit the Claimant’s costs if disproportionate, unreasonable or improperly incurred. 

For more information on this article, or help with a medical negligence claim, please contact Jennie Jones on 01279 755777. 

Jennie Jones

About the author

Jennie Jones

Jennie joined Nockolds in 1999 and was made Partner in 2008; Jennie also heads the Injury and Accident Team, which handles personal injury and medical ...

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