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Is Capping Legal Costs in Medical Negligence Claims the Answer? (Part 3)

Feb 03, 2016

The Complexity of Medical Negligence Claims

In a series of blogs, Jennie Jones discusses proposed changes in medical negligence claims and the impact on patients and the NHS. 

In 2015 the government announced it would be consulting on plans to limit the legal costs that would be paid by the NHS in negligence claims. Why are these legal costs being incurred?

In my first blog, I discussed the government’s suggestion that lawyers were to responsible. The figures quoted in terms of the cost of claims against the NHS will often include the compensation paid to the patient, and therefore is not all legal fees. Most patients who feel the need to complain have often been through a traumatic experience. They also feel powerless to obtain information and answers. Many of the patients I advise do not understand what went wrong and why despite the now legal duty of candour which requires the NHS to be upfront when things go wrong. In light of this, many patients would not feel able to pursue the NHS alone, without legal advice.

Most medical negligence claims are complex. They involve assessing:

  • The reason why a person required treatment in the first place
  • Whether this is a complication or a medical accident, error or failing with the organisation, equipment or malpractice
  • Whether the treatment provided was below the standard of a competent (not pioneering or gold standard) doctor, nurse, midwife, health care assistant, hospital or surgery team; and 
  • Whether the negligence or the health condition caused the harm experienced. 

These are not ‘who drove into who’ scenarios. Medical opinion and judgment does differ, but the process of obtaining medical expert evidence and applying it to the circumstances of the claim requires experience and understanding. In the UK, compensation levels of injuries caused are not at the levels seen in the USA. In large settlements or court awards, the bulk of the compensation is for loss of earnings or the cost of providing care. If a patient has died through the negligence, the sums paid may be limited to a bereavement award. The issues and the feelings of the patient and their families are as emotional and complex whether the claim is worth £15,000 or £1.5million.

While there has to be a level of financial realism and common sense, telling a bereaved family that the hospital cannot be held to account and made to answer the allegations because the law only awarded £15,000 flies in the face of a legal system which should be accessible by all. Patients and their families must also pursue their claims with the legal arm of the NHS which is funded by the government and employs expert solicitors and medical experts to consider and respond to complaints. There will clearly be an imbalance if the fixed costs in clinical negligence claims are so low that solicitors can no longer provide this service or can only take on claims worth 

The claims process is governed by a protocol which requires disclosure of medical records (which should record everything that has occurred, but may not always be the case), full allegations put to the NHS and then a full response after an investigation. If the NHS does not follow this protocol, court proceedings are issued as the only way to progress the claim forward. Where the patient may have a life limiting condition or need care and support, the claim cannot be left to trundle along slowly. By meeting the timescales and requirements of the protocol, the NHS could save costs and conclude claims quicker. In my experience, there can be delays:

  • In providing or finding medical records
  • Responding to the claim
  • Denying negligence and then later admitting the claim without any apparent good reason for the change in position
  • Ignoring requests for interim payments (part of the compensation paid while the claim is continuing) so court applications have to be made

Once the claim has settled, prolonging the legal cost part of the process, which means claims for costs that could be settled quickly and reasonably, are delayed and then further court fees and costs are incurred. 

Read tomorrow’s blog when Jennie Jones discusses the common themes which arise in initial consultations with families who have experienced medical negligence. 

PART 1: 
Read here
PART 2: Read here

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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