Monday, 30 January 2017


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The NHS is a beloved institution but mistakes are made and people die due to negligent error.

Proving that death has been caused by clinical negligence is difficult. Not all errors are negligent. A claimant has to establish the facts - sometimes having to analyse hundreds of pages of medical records - and then, with expert evidence, to persuade the court that no reasonably competent doctor or nurse would have done what was done in the particular case. That is not the end of it. The claimant must also prove that the death would have been avoided but for the negligence.

Lawyers acting for claimants generally get paid nothing for the hours of work they spend on a case if that claim is unsuccessful. Nothing.

If they do succeed in proving the claim for their client then they are entitled to recover their reasonable costs. Whatever they claim in terms of costs, they will recover only the costs that the NHS agrees are reasonable or the amount that the Court determines is reasonable. 

The Department of Health is now planning to cap the costs that claimant lawyers can recover. It has issued a consultation paper setting out proposed fixed fees. Claimants' lawyers will not be entitled to recover more than the fixed sums. These proposals only apply to claimants, not to the NHS. 

Unscrupulous Law Firms

Jeremy Hunt says that "unscrupulous law firms cream off excessive legal costs". That is why he seeks to introduce a fixed recoverable costs regime for clinical negligence claimants whose claims are for damages of between £1,000 and £25,000.

How can a law firm be characterised as unscrupulous if it only recovers costs that the NHS has agreed or that the court has ordered the NHS to pay?

Lawyer bating is a popular blood sport, but these proposals will have a further significant impact on bereaved families. They will restrict even further the ability of families of those who have died as a result of clinical negligence to hold those responsible to account. 

Patients' Deaths

Many of the most serious cases will come within this proposed scheme. Where the NHS is responsible for negligently causing the death of a patient, damages for bereavement are fixed by the government at a figure well below £25,000. And the government restricts the relatives who can claim such damages. So parents of a 19 years old are not entitled to bereavement damages. 

Suppose your child died as a result of negligent errors made by the NHS. Suppose they had no dependants. 

The government will not grant funding for you to have legal representation at the Inquest (funding is only available in very exceptional circumstances). The Department of Health will pay for the hospital to have legal representation, but not you, the one who has lost a child.

The prospect of a solicitor acting for you at the Inquest on the back of a win no fee agreement for a potential civil claim will be effectively eliminated by the proposed cap on costs - there is no provision for representation at an Inquest within the proposal. 

The availability of good legal representation and good expert advice to help you with any court claim will be severely curtailed if the recoverable costs are limited to £1200 for all experts and £7150 for the conduct of the whole claim (as proposed).

How do you effectively scrutinise the management and care afforded to your child? How do you hold those responsible to account?

The Consultation

The fact that it is the Department of Health that is proposing these restrictions makes them even harder to accept. To be blunt, these claims involve fatal errors for which, in effect, the D of H is responsible. And it is the D of H which now proposes to restrict families' abilities to prove that it is responsible.

There are many other ways of reducing the NHS's litigation bill, but the prospect of them being considered appears remote.

I am a clinical negligence lawyer although I now have very little involvement in claims up to £25,000. Does that disentitle me from expressing a view? That is for others to judge.

There is a chance to persuade the government to exclude claims arising out of patients' deaths from these proposals. The Consultation period closes on 1 May 2017.

For those who are looking for some guidance and tips on advocacy at Inquests, or who want to know what is involved in bringing a clinical negligence claim, please have a look at my video guides. Go to Learned Friend Helps With ....

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