As we reported recently, following a Freedom of Information (FoI) request by the BBC, NHS England will have to pay out an estimated £4.3 billion in legal fees and £83 billion for the total costs of unsettled negligence claims.
This news has obviously shocked a large number of people, due to the amount of money that the NHS is losing out on due to negligence claims. As a result, the Government will most likely look to try and lower the cost of NHS negligence claims going forwards.
Reducing the cost of NHS medical negligence claims
In an interesting article by Peter Walsh, Chief Executive of Action against Medical Accidents (AvMA), in The Telegraph he has addressed this point, commenting that the Government’s approach will most likely be to reduce the amount that they are paying out to claimants and their legal representatives.
Whilst this may be a good cost saving exercise for the NHS, it disregards the claimant who may well be left with life-long debilitating injuries, or worse still, they may have died due to negligent medical care and it is a loved one bringing a claim on their behalf. Importantly, such measures will deny injured persons access to justice and they place the burden of responsibility of NHS medical negligence claim costs solely at their door.
Fixed recoverable costs for NHS medical negligence claims
The Government, at some point in the near future, will most likely announce details of an extension to the fixed recoverable costs system that is currently in place. This would cap the legal expenses that an injured person’s legal representative can recover from the NHS.
As Peter writes, the legal costs of medical negligence claims are, in a large number of cases, high due to the length of time the NHS spend defending their position before eventually admitting fault and settling the claim:
“The likely consequences of this are surely obvious. Fewer cases will be successful if the NHS can simply deny liability until the claimant solicitor is no longer able to recover the actual cost of fighting the case. Then, even where cases are successful, the patient or their family may be required to give up a significant amount of compensation to meet the legal costs. And all that is predicated on being able to find a solicitor willing to take the case in the first place – which will only become harder as they grow wary of taking on such a risky proposition.”
Other alternatives to a fixed recoverable costs system have been suggested in the past but they all seem to be at the overall detriment to the claimant and the achievement of the pursuit of justice for the care they have received.
How should the NHS reduce the negligence compensation claim costs?
As Peter comments in his article, it would be much more beneficial to the NHS and to patients if sufficient improvements and investments were made to safety procedures:
“It would obviously be far better if, instead of targeting victims, the Government could work to address the root causes of avoidable harm and help prevent people being hurt in the first place. Many of the current claims would simply not exist if we had seen sufficient investment in staff and patient safety measures.
“Of course, there will always be some cases to answer. For these, the Government could cut avoidable legal costs by ending the deny and defend approach taken by lawyers working for the NHS. If cases were investigated properly and settled early on without the need for litigation it could save millions.”
Comment
The deny and defend approach mentioned by Peter Walsh is, from our experience, why the majority of injured people begin legal proceedings against the NHS, due to them being left with no other option.
Most claimants, or their loved ones bringing a claim on their behalf, simply want to know what has happened during their medical care, what the NHS are going to do to stop these errors happening again and in some cases, an apology. But due to the difficultly in getting answers from the treating NHS representatives and/or NHS Resolution, this simply isn’t happening.
How can Nelsons help?
Emily Rose is a Solicitor in our expert Medical Negligence team.
At Nelsons, we can provide advice and review all types of negligence claims against the NHS. We advise claimants as early as possible if there is no chance of a favourable outcome for them regarding their case. This enables all parties to save time and money, and to avoid prolonging the distress felt by potential claimants.
If, however, the claim has good prospects of success, we will use our skills and expertise to find the fastest and most cost effective outcome. We are well used to advising clients on alternative methods of resolution, including mediation and Alternative Dispute Resolution (ADR).
If you have any questions in relation to the subjects discussed in this article, please contact Emily or another member of the team in Derby, Leicester or Nottingham on 0800 024 1976 or via our online form.