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Published On: April 30, 2015 | Blog | 0 comments

Reducing the cost of medical negligence claims

You have to admire those who represent the medical professions and the  hospitals.  They are constantly striving to reduce the level of compensation for patients and moaning  about the outrageous cost of legal action, but are reluctant to settle cases which could be resolved at an earlier stage reducing the costs incurred.

The primary and significant cost of clinical negligence is the fact that mistakes are made. Patients are damaged, sometimes  seriously so. None of the legal costs would arise if negligence didn’t occur in the first place.

However leaving aside the obvious, here the Medical Defence Union (MDU) representing a large proportion of medical practitioners considers that costs could be reduced in several ways. The observant will notice that better care and  early resolution of cases do not feature on their list.

Firstly  the MDU would like to stop pateints having the right to claim the cost of private care post negligence. They would like patients who have been injured by the NHS to be forced to use the NHS services afterwards, rather than services paid for by the negligent doctor’s insurers.  Even if you ignore the issue of whether the patient has confidence in the NHS, how is the NHS to cope with this? The reason many of the care packges are privately funded and resourced are because the NHS cannot and will not provide the level of service patients who are injured actually need.

The headlines (and there are so many about the problems of the NHS ) currently suggest that there are increasing waiting times. Emergency departmnets are full to overflowing; referrals and appointments are dealyed; GPs are opting out of the work at a frightening rate.   This is not the picture of an organisation in good health itself. It is a system which is in desperate need of finance and  good quality staff.  How is the NHS to provide this care exactly?

Take an example. Client is paralysed and essentially receives 6 short visits a day from carers to wash, dress and provide general care. She is left on her own the rest of the time and for long periods.  The experts representing the defendant and the patient both agree she needs 24 hour care 7 days a week. How is the NHS to provide that exactly when it cannot even provide a basic service to someone who is seriously injured following surgery?

In addition the MDU would like loss of earnings claims to be capped at three times the national average regardless of the earning potential of the patient who can no longer work because of their member’s negligence. Aside from the fact that this goes absolutely against all legal principles, is there a particular reason why a high earner who could have expected to earn a significant lifetime income should receive a reduced income to save the MDU money?   The legal principle is that you take your victim as you find them, you deal with what they are, not what you think they should be.  The legal process is designed to put patients back into as near a position as they would have been in but for the negligence.  It fails always because whatever money a patient receives, it cannot and doesn’t compensate for the injury.  Is there a new principle then – you take your patient only as long as it doesn’t cost much and if so you put them back into a position that someone with less earning potential would have achieved?

The MDU are not frightened of trying to change fundamental principles. They need to reduce costs and if  rights have to be shelved well so be it. 

Of course back to the start – perhaps they could look at avoiding the negligence in the first place and perhaps, just perhaps, those representing defendants could consider early admissions for cases which are barn door negligence claims.  Perhaps they could pay interim payments for costs and compensation without the need for court orders  and thousands of pounds of costs?  

Attacking those who take claims is easy. Understanding why they need to take legal action leaves uncomfortable truths. Medical practitioners harm people from time to time. Defendants in medical negligence claims have a poor record of admitting faults and dealing with them. I imagine those two simple facts cost much more than the need for private care and the small percentage of high earners who are injured.

Maybe we could concentrate on the real issues rather than blaming the injured.

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