The System Is Sick & It’s Not Lawyers To Blame

A recent Freedom of Information request by those champions of responsible honest journalism, The Mail On Sunday, has made public how much some law firms have been charging for medical negligence compensation cases against the National Health Service.

An article written by the publications’ health correspondent, Stephen Adams, breaks down these figures and the result is a piece riddled with bias and disdain towards the legal industry whilst offering nothing of any real value to the public other than seemingly to create resentment. Trying desperately to reach maximum effectiveness the headline starts with the classic word ‘Vulture’ and Stephen makes sure to sprinkle other chestnuts such as ‘ambulance chasers’ throughout his diatribe against those seeking restitution for harm caused to others.

One of the authors’ main bugbears is the fact that the amount of money paid out in costs over the last 12 months for damages claims (not including costs) has trebled from approximately £320 million to around £950 million over the last decade and the annual spend on lawyers has risen from £83.3 million to £418 million. Should Stephen instead really be writing an article about the rapidly increasing mistakes by the NHS? Wouldn’t the public interest be better served this way?

What Stephen and The Mail On Sunday are failing to take into account is the simple fact that this money, whatever the figures, is ONLY paid out when a court of law decides that the NHS has indeed been negligent in its duty or the NHS itself settles early to avoid a court hearing (where the risk lies of them having to pay out even more if found to be negligent). Therefore, there is obviously an enormous increase in the amount of errors by the NHS and its staff. The law makes provision for people affected by negligent healthcare and clearly sets out that people should be compensated for their suffering at the hands of others – intentional or not.

The same goes for the legal costs. Everyone knows legal costs can be expensive, especially in complicated cases and the costs are only paid out for successful cases.

This isn’t intended to be derogatory towards the NHS, they do a sterling job and it is the envy of the world and the people on the front line have to put up with enormous amounts of pressure daily which many of us couldn’t do for no thanks and inadequate pay. However, mistakes happen – and it’s often down to poor management, lack of resources, the expanding population and lack of staff to compensate, financial cuts and poor communication which means it’s the system that should be under scrutiny, not the people that work in it.

On paper, not in its true context, the costs can seem to be excessive. There are a large amount of cases where there is no cause for complaint about the costs and, again, the costs are paid out because the claim is successful and a court of law has decided there is reason to pay.

There are also those cases where the legal team acting for the NHS becomes like a dog with a bone and refuses to back down and take responsibility instead of just accepting their error(s) and then end up losing in court when they could have just worked with the claimant and their legal representation to ensure the correct amount of compensation is paid and therefore expediting the process and saving on costs.

The chairman of the Society of Clinical Injury Lawyers, Stephen Webber, stated that the NHS Litigation Authority (NHSLA) has compounded matters by making patients suffer through a ‘culture of defend, deny and delay’ in the hopes of winning their cases. This just makes the legal costs as well as the suffering to the affected party substantially greater. The alternative would be for the claimant’s legal team to say “Oh well the NHS are being difficult so we may as well stop” which is ridiculous and defeats the purpose of commencing litigation.

So, to reduce financial costs, a more pragmatic approach would be to

  1. Overhaul current practices and learn from previous mistakes and strive to reduce errors.
  2. If and when a mistake is made, own up, pay what’s due to the claimant and then see step 1.

This simple formula would reduce claims and costs and is easy to take action on. Of course, mistakes will still happen but the frequency and severity could be scaled down.

How would you feel if you or your family member were the subject of a mistake that ruined your life? Is it not fair and reasonable that you receive at least some compensation?

If no mistake has been made and there is no claim then not a penny in legal costs are paid.

There is a minority of unscrupulous lawyers where, even when it’s been proven the NHS has been negligent, the fees claimed are excessive however the NHSLA have the power and responsibility to bring it before the court and challenge it.

The main problem is how the NHS deals with litigation claims. The aforementioned culture of ‘defend, deny and delay’ is totally unacceptable, as is the rise in errors made. So long as those mistakes are made, there will be litigation cases.

Lawyers are merely trying to get people what they are due and targeting them unfairly with articles like Stephens’ effort is extremely short sighted and trying to hide what’s really going on. A failing system. It’s ironic that the health service itself is in ill health and is need of reform.

His generalisation about lawyers and the attempt at trying to tar them all with the ambulance chaser brush makes as much sense as reading the Mail On Sunday and assuming that ALL newspapers are full of rubbish with talentless hacks for writers.

If you have been a victim of medical or clinical negligence then you may be entitled to claim compensation. Contact us today.