Hudgell Solicitors will be strongly opposing Department of Health (DoH) proposals to place a cap on legal costs involved in clinical negligence claims against NHS organisations.
Importantly, we will do so to not to protect our own earnings in such cases, but crucially to ensure patients across the UK continue to have the option of seeking compensation when they have been victims of sub-standard medical care.
As specialists in handling such claims, we see the devastating, life-changing impact medical negligence can have. When people suffer from sub-standard treatment, they need someone on their side to ask serious questions of those who have let them down.
We know that without our support, their concerns and complaints, more often than not, would most likely be dismissed.
The DoH has written to the Association of Personal Injury Lawyers (APIL) to confirm that a formal consultation will be published in November and close in December. The letter has indicated that the DoH intends to bring in the proposals from October 2016.
Of course, at the heart of these proposed changes is the rising cost of medical negligence to the NHS. Data published by the Litigation Authority showed the total clinical negligence bill for providers, including paying damages and legal costs, reached £1.1bn in 2013-14.
Of this, claimants’ legal costs (patients) were £230m, while defence costs (NHS organisations) were £79m.
However, the key to these figures is the fact that the only costs the NHS pay are in cases that they lose. These are cases where medical negligence has been proved or eventually admitted – not cases of people ‘trying their luck’.
That means there is a potential saving of £309m through either providing a better standard of care and eliminating such errors, or by admitting those errors earlier and avoiding rising legal costs.
In addition the figures overlook the rigorous screening processes lawyers go through before taking a case on. Only one or two of every ten cases will actually be pursued. We carefully assess each case on its merits before making the decision to litigate.
As we have previously said at Hudgell Solicitors, it is all too easy for the DoH to point the finger of blame at medical negligence lawyers.
The reality is, many cases see legal costs spiral simply because there is a reluctance throughout the NHS to accept liability at an early stage and compensate those who have suffered.
It is often only when a lengthy legal process has been followed – including the cost of solicitors seeking opinions from independent experts and instructing counsel for potential court cases on behalf of their clients – that settlements are offered.
In essence, the NHS often denies negligence until it faces a court hearing, and pays up when it realises the case won’t go away.
In such cases, five-figure legal costs, and possible higher, could be avoided. That is why we took the step recently of revealing our costs in some such cases to highlight this.
Interestingly, the consultation will also review whether “after the event insurance” costs should continue to be recoverable from the defendant in a clinical negligence claim. This refers to insurance that protects a claimant against costs they would be liable for if their legal action is unsuccessful.
To remove this cover from a claimant would often make it almost impossible for a victim of medical negligence to have access to justice.
Most people don’t have the finances to launch a legal challenge without such cover (unlike NHS organisations which have millions to defend them) and quite simply, it is this protection which gives people the chance to seek the compensation they deserve.
If the NHS knew patients could not secure such insurance, it would, in our opinion, only lead to an even stronger culture of denial, as NHS organisations would know they could effectively ‘price out’ patients from making a legal challenge by denying negligence, knowing the patient would be unlikely to be able to take the financial risk of facing costs down the line.
In many of the cases we handle, providing such cover is key to ensuring we can continue to support the client, and ultimately win their case, in the face of denials from the NHS.
The DoH, in our opinion, is simply looking in the wrong direction when it comes to lowering NHS costs.
It should be looking to introduce changes that investigate where things have gone wrong, and learn lessons to ensure they can be prevented in future.
This would help reduce the costs involved in medical negligence cases, freeing up more money to invest back into the NHS and provide a standard of care across the country that tax payers deserve.