NHS lawyer failures are driving up costs - By, Mark Bowman
This article was first published in 'The Times', Tuesday, August 2 2016
Accounts published last month for the NHS Litigation Authority contained the welcome development that new claims against the health service in 2015-16 fell by 4 per cent last year. That is encouraging, as it suggests that fewer lives were destroyed by medical mistakes.
But the report also reveals a 43 per cent hike in claimant legal costs. Part of the reason that the authority's legal fees are so high is that it continues to defend cases that are clearly indefensible.
A negligence case is not a witch hunt against doctors who go to work every day with the intention of helping people. There's a clear legal distinction between a medical mistake that causes no harm and negligence that has a catastrophic impact on a person's life. Negligence is only established if, in the opinion of experts, no other doctor would have acted in the same way in the same situation.
When such an act injures someone and changes a life beyond recognition - leaving a father, say, so severely disabled he can never work again, or a mother to look after a child with brain damage for life -- most medical professionals would agree there is a responsibility to compensate these victims to restore their lives as far as possible to how they were before, through rehabilitation, care or adapting their home.
A duty of candour was introduced to every NHS trust in 2014 to encourage honest dealings with patients when something goes wrong. Rather than trying to cover up mistakes, the litigation authority would save millions each year if it worked with trusts to admit liability earlier. This would not only reduce legal costs, but victims would not have to wait years for vital care to make their lives manageable.
Unfortunately, in the majority of cases handled by claimant solicitors, the authority fails properly to investigate a case at the earliest possible stage. Even when the hospital's own internal investigation report shows clear failings in care -- or when a coroner requests an admission of liability after a guilty verdict -- the authority continues to deny responsibility, presumably hoping the injured patient will lose heart and go away.
Often only once court proceedings have begun is an admission finally made, usually years after the event in question, racking up the legal fees.
The NHS and the legal authority that represents it owe the public a clear duty of honesty and transparency. But by continuing to drag its feet in settling a rightful claim, the litigation authority hides away and prolongs catastrophic events that should never have happened into long-running legal cases that benefit no-one, least of all injured parties or the responsible doctors.
Mark Bowman is a medical negligence specialist partner at Fieldfisher, a London law firm
Mark joined the award winning Fieldfisher Personal Injury and Medical Negligence team as a trainee in 2003 and was promoted to Partner in 2013. He successfully pursues personal injury claims and medical negligence claims on behalf of victims and their families.
His medical negligence practice is wide ranging and includes birth injury, surgical negligence and delayed diagnosis amongst others. His personal injury speciality is catastrophic injury cases and in particular road traffic accidents, cycle accident claims and accidents at work. Mark has recently secured the right to anonymity for Claimants who are protected parties or children in personal injury or medical negligence cases, in the landmark Court of Appeal case of JxMx.
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