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Is Capping Legal Costs in Medical Negligence Claims the Answer? (Part 4)

Feb 04, 2016

Improving Access and Efficiencies in the NHS and at the Ombudsman

Having handled medical negligence claim for over 15 years, I understand that each complaint or claim is unique. Sadly, however, there are common themes that come up in my initial consultations with patients and their families such: ‘We didn’t want to complain as we were worried they would not look after Mum when we went home at the end of the day’ and ‘We couldn’t get an answer to our questions’. 

As a starting point, I will always help a patient to raise their concerns as a complaint or to trigger a Serious Incident Investigation. This can often answer their questions and diffuse the anger and upset felt by a patient and their families. The new Duty of Candour has helped patients to get answers to their queries but not in every situation. Pressure and ongoing chasing can be required to get a meeting or an explanation. Many people need legal support to manage this process while they deal with the day to day recovery or coming to terms with what has happened. Improvements in dealing with complaints and concerns would go a long way and while some in the NHS are truly fantastic at this element of patient care, this is not patient experience across the service. 

Having obtained the answers and explanations, patients can then consider their options and take advice. Patients will find it difficult to get advice on the complaints process if solicitors are unable to continue to offer this within the medical negligence arena. Patient complaints are known to be confusing due to the number of organisations involved, and currently the subject of campaigns by Which? and other patient representative groups to improve access and efficiencies in the NHS and at the Ombudsman.

For all of these reasons discussed in my series of blogs, removing access to expert and experienced legal advice and guidance from patients does not sit well. Justice should not be restricted to those who can afford it (and indeed afford private healthcare). In an emergency, we can all find ourselves under the care of the NHS. In the vast majority of case, the service provides fantastic and life-saving care. When that doesn’t happen, patients should be protected and compensated. There are already measures in place to ensure claims have merit and are pursued as cost efficiently as possible. Allowing the current measures to bed in and enforcing the protocol, would be an effective first step, and if savings were reinvested in the NHS, standards may improve and fewer mistakes occur, which is a win-win situation for all concerned. 

  • The government consultation on the fixed fee plans was postponed from December 2015 to early 2016
  • Possible plans are to fix the costs in claims worth less than £100,000 or £250,000
  • At present in personal injury claims such as road traffic accidents and accident at work claims, costs are fixed in claims worth up to £25,000

PART 1: Read here
PART 2: Read here
PART 3: 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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