In a recent press report BBC health correspondent Adam Brimelow estimates that ‘payouts’ in clinical negligence cases against the NHS in England are expected to rise by 80% in the next year. It is argued that the expected increase is the result of increased legal costs as well as recent changes in the way compensation is calculated. It is also suggested that the extra funding which is supposed to be allocated to services, such as maternity, is being used up to pay for negligence claims instead.
In our experience what is often most important to injured people is finding out what went wrong and responsibility being accepted for failings. However, despite attempts to improve the complaints process, there appears to be a continuing reluctance to accept responsibility for adverse incidents at an early stage. This is sometimes the case even when serious untoward investigations or complaints have identified serious failings. Leigh Day & Co would welcome more open and frank investigations into adverse events, which may avoid the incurrence of substantial legal costs.
Increasing restrictions on the availability of legal aid mean that most people, even those of modest financial means, cannot access funding for clinical negligence claims. If they do not have access to legal expenses insurance (which is itself very restrictive), they have no choice but to seek funding under a Conditional Fee Agreement (a CFA or “no win no fee” agreement). It is true that a lawyer is rewarded for taking on the risk of not getting paid at all for work on a case that is unsuccessful , however, all the cases that we take on, irrespective of how they are funded are thoroughly investigated. It is the merit of the case that decides if it is to proceed, not the method of funding. It is often forgotten that where the NHS successfully defends a CFA funded then it has the prospects of recovering its costs because these cases must be insured for this possibility. This does not happen in a legally aided case.
It is shocking that criticisms are being levied against injured patients who have brought a claim for negligence by saying that they are eating up the extra funding to improve services such as maternity. Maternity related incidents often result in injury cases of the most utmost severity (such as children who negligently suffer brain damage as a result of failures during delivery). Not only have these patients suffered catastrophic injuries as a result of negligent care but, by failing to adequately compensate them, they will be subjected to additional “injury” from not having the provision of sufficient care and other needs over their lifetime.
Over the last few years, injured patients have been able to have their compensation paid by way of annual payments for the duration of their lifetime rather than a lump sum award which carries the risk of under or over compensating an injured person. It is usually the most severely injured people, who have lifelong care needs, whose compensation is paid by periodical payments.
Russell Levy, head of the Clinical Negligence department supports the comments made by of Professor Cathy Warwick, general secretary of the Royal College of Midwives, who was reported as saying: "A properly funded maternity service is likely to lead to clinical negligence claims dropping”. Russell welcomes any additional investment which is likely to improve the quality of all health services but, until there is an improvement in services and a reduction in adverse incidents, the litigation bill is unlikely to diminish.
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