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Don't punish the injured

Nicola Wainwright responds to the Government's plans to cap fees in clinical negligence cases, limiting access to justice for those injured through no fault of their own in the healthcare system

Nicola Wainwright is a partner in Leigh Day's clinical negligence team. She deals with a wide range of claims involving different types of negligence and injuries. Follow Nicola on Twitter @NicWwright
Yesterday, to a rather muted response, the Government announced that they were going to clamp down on lawyers who ‘overcharge the NHS’ in clinical negligence cases.

The press release sent out to the media didn't mention the effect on injured patients this punitive measure would have, or whether it would limit the costs for defending claims.

The reforms proposed suggest that it would only be the legal costs available to those injured that would be affected, whilst the NHS Litigation Authority seemingly retains a ‘no limit’ approach in defending claims.

The press release stated that in some cases lawyers were ‘earning’ 10 times the amount their client receives in compensation, proof of ‘over-charging’.

However the figures for money ‘earned’ by lawyers failed to explain that these costs cover the need for medical experts, Barristers, Court Fees, VAT and the cost of having a legal team equal to the lawyers on the hospital's side..

Nowhere in the release was there an acceptance of the role the Government (in the form of the NHSLA), and their external lawyers, play in causing legal costs to rise to the level they do.

Hospital trusts will often fob off patients who complain and withhold information from them unless and until they instruct lawyers, forcing those injured into taking legal action to find out exactly what has happened.

Then, they fail to admit that care was substandard early in cases which are indefensible and in which they later make a full admission of liability.

It is therefore within the NHSLA's power to reduce costs yet they do not do it.

These proposed reforms will just cause further misery to those injured through poor care by restricting their ability to claim compensation to cover the costs they are now having to pay because of their injuries, which were caused by incompetent medical care.

The limiting of these costs will of course curtail their ability to achieve justice.

It is very rarely possible to assess whether a patient's claim in medical negligence will succeed at the outset because the information (records) and medical expertise lie with the Defendant.

That means all cases need thorough investigation by the injured person’s lawyer with independent medical experts.

Limiting the costs, and so the work that can be done, will mean that some patients injured through no fault of their own will never get to the bottom of what happened to them and so will not be able to bring a claim.

The government seems to think that lower value claims are somehow easier and, it would seem, the injured person less deserving.

The complexity of a claim does not necessarily equate to value. The lowest value claims arise when substandard care has led to a patient's death, the most serious injury of all.

Legislation provides that the sum of only £12,000 is awarded as recognition of the bereavement suffered with the loss of a loved one.

The costs of investigating a negligently caused death will always exceed that amount. These reforms could mean that bereaved families are prevented from obtaining any form of redress despite their loved one’s death being caused by substandard medical care.

Most of us would think it important that those that are negligently killed or injured by another’s carelessness or incompetence have some form of redress and explanation of what happened.

How many times have we heard at the end of a trial or at a settlement that the hospital 'has learned from these mistakes' and only through exposing the truth have things changed. Are these lessons to stop?

There is hope; today’s introduction of a Duty of Candour, in the health service is to be welcomed.

Doctors, nurses and midwives will have to offer patients face-to-face apologies and say they are personally sorry about medical blunders under new rules introduced by the GMC.

Being more honest and transparent by admitting mistakes early and paying compensation to cover what that person, or their family, has lost remains critical to reducing costs.

There remains, however, a way of reducing the bill to zero and that is to improve patient care so less people are injured or killed. Why are the government, NHSLA and medical defence organisations not focused on that?
Case Study

Jane Manning, a 42-year-old mother of two, died following a delay in diagnosis and treatment of oral cancer.

Expert evidence showed that doctors had wrongly concluded that biopsies taken from Mrs Manning in September 1995 and December 1996 contained no evidence of the cancer.

Her husband Gary took legal action against the Trust and an offer from his lawyers, Leigh Day, to settle the claim for damages of £500,000, was rejected by the NHS Litigation Authority (NHSLA).

At this point the legal fees, which cover medical experts, barristers, court fees and other expenses, would have been about £100,000.

The NHSLA and the external law firm working on their behalf insisted that the claim would not succeed and forced the Manning family to endure a 7-week High Court trial.

Mr Manning had tragically also contracted cancer and died before the judgment was given .

The NHSLA lost their case in the High Court. Despite this, Kings’ College Hospital NHS Trust and the NHSLA launched an Appeal.

The Court of Appeal again found in favour of the Manning’s estate and the two-orphaned Manning children.

The case was a massive waste of over £2million of public money.

Had the lawyers for the NHSLA negotiated at the beginning not only would they have saved over £1m but also the family would have been spared the uncertainty around the two trials.

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