NHS Allegations Of Rising Costs From Clinical Negligence Lawyers
- AuthorJohn Hall
If you were to believe the media then you would probably think that the NHS is being swamped with claims to such an extent that much needed funds for treating ill patients are being diverted to satisfy them.
It may come as some surprise therefore to read the latest report from the NHS Litigation Authority which reveals that:-
(a) The NHS Litigation Authority’s net operating costs fell by 27% over the year;
(b) The number of claims reported to the NHS LA fell by 3.7% despite treating more patients and despite an increase in reported incidents;
(c) The amount paid out in damages has also reduced by 8%.
It therefore seems churlish on the part Ian Dilks, the NHS LA Chairman, to refer in his report to ‘over a third of what we spend each year is received by the legal profession and ………. most of this is paid to claimant’s lawyers’, and for Helen Vernon, the Chief Executive of the NHS LA, to refer to ‘an increase in costs associated with clinical negligence claims in recent years’.
The report significantly downplays the good news portrayed by these figures and one can only conclude that this reflects a political approach with the clear aim of attacking fees charged by Claimant lawyers.
The report also fails to reflect the fact that it is becoming increasingly more difficult for persons injured due to the fault of hospitals and GPs to successfully pursue damages claims. In order to succeed in a claim a Claimant has to show that there has been a breach of duty by the practitioner concerned and that that breach has caused the injury. Even if the practitioner acted imprudently this would not necessarily be sufficient grounds for an award to be made. The practitioner need only show that a minority of practitioners would have also acted in that manner to establish a good defence. In other words if 90% of practitioners would not have done so this would not necessarily suffice.
If an injured person’s claim is relatively low, say no more than £25,000, then, generally, if it proceeded to trial the costs involved would significantly exceed that amount. As a result of recent changes in the law a court can now determine that those costs, despite being reasonably and necessarily incurred, are disproportionate and therefore cannot be recovered. Effectively this means that an injured party could win an award of £25,000 and find that this amount has to be repaid to the legal representatives by way of a shortfall in the total costs recovered.
To provide an analogy supposing that you called out a plumber to deal with a leak and he had to spend say 3 hours of his time in locating the leak then a few minutes in repairing it and he decided to charge you say £150 for the job.
How do you think he would feel if you replied that you accepted it was reasonable and necessary for him to do the work but it was only a small job and therefore his bill was disproportionate and you then gave him £75 for his work?
Unfortunately very few people are aware of how the legal system has changed because fortunately only a small minority of people are wrongly injured as a result of negligence. However it is cold comfort to those on the receiving end when they discover that effectively they have no remedy against the wrongdoer.