Friday, 21 August 2015

Alarming or Alarmist?

A campaign is afoot to persuade the public that claimant clinical negligence practitioners are over-charging, thereby diverting much needed funds from patient care. Ben Gummer MP at the Dept of Health has said that lawyers are "loading grossly excessive costst" onto the NHS. The media have seized upon the NHSLA's Annual report for 2015 as further evidence in the case against the lawyers.

Take for example this piece in The Guardian under the headline:

NHS sounds compensation alarm after £120,000 lawyer bill for £5,000 claim

Beside the piece is a side bar headed: "Clampdown on lawyers overcharging the NHS in medical negligence cases"with a link to an article about government proposals to introduce fixed costs for clinical negligence claims.

The headline case was one of delay in diagnosing cancer. Readers of this blog will know how difficult such cases are to investigate and to prove. Damages were eventually agreed at only £5,000 but the case was struck out.  Hence, the costs received by the claimant's solicitors were nil. They worked for nothing on a case which was doubtless both difficult and of considerable importance to their client. This is not mentioned in the report or The Guardian piece.

In the other example used in NHSLA report and the Guardian piece, claimant lawyers are condemned for seeking over £50,000 in costs for a claim settled for £2000. However, the eventual award of costs was just over £12,000. Details of the case and the expert evidence required to prove it are not provided.

Striking a balance between achieving access to justice and reducing the costs of claims against the NHS is an important public policy issue1. Coverage of the NHSLA's report, whether prompted by government briefing or otherwise, has so far done a disservice to informed public debate. Whilst not seeking to argue for or against the fixed costs proposals, I do think it is important that the media and the public are given some basic facts about costs. Some of these are so self-evident to those who work in clinical negligence litigation that they are often left unsaid. 

Very Few Claims
Only a tiny fraction of patient interactions in the NHS result in negligence claims. Very many patients choose not to sue the NHS for damages even though enticed to do so through advertising and the attraction of no win, no fee agreements. Clinical negligence lawyers did not lobby for, nor did they introduce no win, no fee agreements.

Claims are Difficult and Costly to Prove
It is very difficult to win a clinical negligence claim. It is extremely rare for a medical professional to tell a patient that they have been negligent. In the absence of admissions by the NHS, the patient has to prove that the doctors were negligent and that the negligence caused them avoidable injury. Treatment is negligent only if no responsible body of doctors working in the relevant field at the relevant time would consider it acceptable.  It is not enough to show that the treatment was below average or poor. To prove their case a patient needs to acquire, sort and interpret the medical records and then obtain supportive expert medical opinion from doctors who either work or have worked in the NHS, that the treatment given to them was negligent and that the negligence resulted in avoidable injury. This may require them to obtain several expert reports and then to meet with the experts to ensure that their opinions can be put together to form a coherent and persuasive case against the NHS. All of this work needs to be done before a patient knows whether they have a case worth pursuing.

The NHS Demands Proof of Loss and Damage
Patients have to prove the extent of the injury suffered and the financial consequences of it. It is not enough to put a rough figure on likely damages. The NHS presses for evidence in support of the losses claimed. This may require expert evidence from, say, a prosthetic expert, an accommodation expert and an occupational therapist.

No Burden of Proof on the NHS
There is no burden of proof on the NHS. Hence, claimants incur much greater costs than defendants at the early stages of a case.

Claimant Lawyers Often Unpaid for Investigating Claims
If the investigations show that there is no worthwhile claim to be brought, the claimants' lawyers do not get paid anything for the work they have done. It would cost the state a small fortune to pay for the independent investigation of potential claims against the NHS. Instead that burden is met by claimant lawyers.

Claimant Lawyers Only Paid for Successful Claims 
Claimants' lawyers are only entitled to be paid for successful cases. 

Claimant Lawyers Paid Costs only by NHS Agreement or Court Order 
In each case where the NHS pays costs to Claimant's lawyers the NHS has accepted that it should pay costs, or has been directed by a Court to pay costs. In every other case the claimant's lawyers recover no costs at all from the NHS.

The Amount of Costs Paid to Claimant Lawyers is Determined by NHS Agreement or an Independent Judge
The amount of costs payable in every case the NHS loses is either agreed by the NHSLA or is assessed by an independent Judge as being reasonable and proportionate. The more cases the NHS loses after arguing that it was not negligent, or contesting the level of damages, the greater the costs burden to the NHS.

Costs Include Experts' Fees, Court Fees and VAT
A claimant's claim for costs will typically include experts' fees, an insurance premium (where recoverable in law) court fees and VAT. Not all costs recovered are for the lawyers - some go back to the government.

Costs Are Limited to those that are Reasonable and Proportionate to the Claim
If fixed costs are introduced and are set below currently allowable rates then they will be below costs thought by the courts to be reasonable and proportionate.

The Government Fixes Damages for Death
Many claims involve patient deaths caused by medical negligence. The government controls who can recover damages for a death and the amount of such damages. If fixed costs are introduced and are fixed as a proportion of damages, then the government will in effect control the ability of families to challenge the NHS where they believe a loved one has died as a result of clinical negligence.

Clinical Negligence Claims Are Also Brought Against Private Healthcare Providers
Any restriction on recoverable costs for clinical negligence would apply not just to claims against the NHS but to claims against private cosmetic surgeons and other private healthcare providers.

1. See previous post on various aspects of clinical negligence litigation that could be investigated with a view to reducing costs

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