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How are compensation claims impacting the NHS?
Stuart Bramley, a clinical negligence Partner at Tozers, notes –
Every year this topic arises in the press, and every year the figures given are entirely misleading. Defendant solicitors, i.e. those representing the NHS, are obliged to continually provide the organisation, NHS Resolution (NHRS) with predicted sums for every claim and potential claim they handle. That is entirely sensible, so that the Health Service can keep track on the cost of claims they themselves have caused. However, NHSR follow the same practice as insurance companies in that they want this information for every patient enquiry or simple request for medical records even though only a small percentage of those will ever become legal claims. Further, each of those must be costed on a worst-case scenario, calculated as though every patient will win; has had the worst-possible injury; and with the maximum financial repercussions. In reality, compensation will be significantly lower than that – if the patient succeeds at all.
The standard Daily Mail outrage about ‘no win no fee’ lawyers is rather ironic since that newspaper historically campaigned for this type of funding to replace legal aid. Those of us who take on claims on behalf of patients injured by the fault of others take a real financial risk – if the case does not succeed we are paid nothing at all. In the winning ones, the ‘success fee’ is limited by law and related to the damages received so if solicitors really did chase low-value claims, as the Mail suggests, their fees would be tiny.
Research carried out last year confirmed what clinical negligence solicitors have always known – that well-founded claims by those terribly injured are strung out for far too long by NHS lawyers, increasing costs so that in some cases these will unavoidably be greater than damages paid. In those where no admission of fault is given in the early stages, so that the patient has no choice but to start legal proceedings at court, more than three-quarters are then settled. If that decision had been made when it should have been, the savings to the Health Service would be enormous. It would be a welcome development, although not as satisfying as writing intemperate articles maligning those who try to assist patients injured by others.
If you would like further advice you can contact our specialist medical negligence team