Fixing legal costs for medical negligence cases will not fix the NHS

News broke this week that the NHS is in financial crisis. Within the first three months of receiving their new budgets healthcare trusts have seen their deficits grow to equal that of the entire previous year.

This is no surprise to lawyers representing patients injured by medical negligence. For months now we have been complaining about the unacceptable tactics employed by the trusts’ litigation authority to avoid making payments. Delaying instructions, avoiding settlement discussions and failing to pay on time all commonplace. Also unsurprisingly, patient lawyers are being scapegoated as a major reason for why the financial mess has occurred in the first place. One way around this is said to be the fixing of the legal costs in future claims brought against the NHS. This could not be further from the truth.

Without negligence there is no claim. If money is spent on adequate staffing and training, the number and therefore cost of claims reduces. The answer seems simple.

Limiting costs will only make it harder for an already injured patient to obtain the legal advice they need. This is not only unfair, it is potentially illegal. By not being able to fund legal advice, that patient is being deprived from obtaining their entitlement to redress.

The proposed change seeks to fix the costs for lower value claims. However, many have rightly commented that a lower value claim does not necessarily mean less complexity. Is it right that someone already harmed by medical negligence then risks being the victim of professional negligence if the costs recoverable means their solicitor cannot spend the required amount of time or expertise dealing with their matter? Further, it is often the case that higher value claims involve significant claims for lost earnings.

Without these, the claim might otherwise be regarded as a low value claim. One hopes that the changes are not directed at victims of medical negligence without significant claims for lost earnings i.e those on low incomes, those claiming benefits like the disabled, the elderly or indeed children, but the assumption is plain.

Eradicating claims when negligence occurs is not necessarily a good thing. Very often important issues are brought to light through them. The injured patient feels vindicated, the trust has the opportunity to put measures in place to prevent reoccurrence and reform for the good of all society is possible.

Reducing the funds available to an injured patient in bringing their case will have an adverse effect on the patient but also on the courts and ultimately the NHS. Without the appropriate funds to engage experts, patients run the risk of instructions being refused or accepted only by experts without the expertise necessary to give proper assistance to the court. Further, solicitors do good by screening claims. Without them, the NHS would waste vital funds investigating unmeritorious claims. All around, it seems fixing recoverable fees will in many ways increase rather than reduce overall costs.

The NHS must focus on reducing harm done, rather than the cost of legal cases arising from doing harm. If claims are not brought, any continuing harm goes unnoticed. That is dangerous. We need accountability. Those working in the NHS do a brilliant job but so do the lawyers who advise patients when things go wrong. Fixing costs is not the answer.

* Disclaimer: The information on the Anthony Gold website is for general information only and reflects the position at the date of publication. It does not constitute legal advice and should not be treated as such. It is provided without any representations or warranties, express or implied.*