Doctors blame 'no win, no fee' for rise in legal actions

I hope I am never in receipt of £5million settlement for injuries sustained for medical negligence, because that represents requiring complete care for the rest of your life following the likes of severe brain injury or paralysis. It is phrased like it is a lottery win equivalent.

If lawyers don't make some success fee for the cases they win, they will simply only take the dead cert cases - and ignore the risky ones where they might do the work and not get paid - remember - no win, no fee.

Finally "a 56% increase in disciplinary cases against members in the hospital and primary care sectors" does sound like a "deteriorating standards of care", which is the fault of lack of funding reducung staff numbers - think of the money wasted on the computer system, billions spent in Iraq and Afghanistan, rather than it being the amazing NHS staff that are left suddenly becoming incompetent, they are simply overstretched.

Maybe, just maybe, the DDU should just fundamentally realise that claims are going up because doctors and dentists are negligent and harming the public in increasing numbers.

The MDU should take the planks out of their unseeing eyes before attempting to remove splinters from others.

Did we really need an article to tell us that ‘Doctors blame 'no win, no fee' for rise in legal actions’?
The situation is similar to the millions of cases defended because there were legally aided. A second factor to the rise in medical and dentistry claims is the publicizing of ‘winnings’ by the hungry media. The millions that some victims receive is the incentive for the public at large to try their hand at getting some money for free.
A third factor is the Internet from where unscrupulous people can study the relevant symptoms and spin a yarn around that to bring a case to court. In the present economic climate especially, what is needed is more investigation into claims brought to court. A fourth and very real factor is that lawyers are desperate for work. A fifth factor is lack of ethics as a subject in university law degree courses.

One ponders on the thousands of cases that reach the appeal court and wonder at the machinations of clever lawyers to carve a course of actions which can spin out a court case as far as the Supreme Court in London, the reminder being that, win or lose, those with the funds (Legal Aid or ‘No Win- No Fee’) or Insurance policies picks up the tab, which eventually finds its way back to each citizen to bear the total cost.

A sixth factor that must be taken into consideration is that the legal system does not exist is a vacuum. What class one is from; the colour of one’s skin; one’s accent and attire all help or hinder the prospect of a lawyer taking one’s case.

A seventh factor is that there are unscrupulous middle-class persons who do know or are related to lawyers. When last did a lawyer declare a true conflict of interest and alert the barrister he asks for an opinion that he knows the claimant well and is actually a family friend or relative? Not many, is one’s estimate and the reason is similar to the reason for the ‘old tie network’- if one goes down then all will go down.

The eight reason is simply gluttony and greed. Money/capitalism/economy is God here.

The ninth reason is that in the United Kingdom, unlike the United States, judges are revered in a similar way to the Royal family. One never hears of a judge being called to account, being dismissed or even being pulled up for speeding. Judges come to court with their own agenda. Judges will give extremely lengthy decisions when the decision is controversial, as if wordiness will simply confuse the reader. One can often draw a flow chart through a lengthy decision to get at the truth of the decision- obscured in a mire of words.

One is reminded that is 1993 a claimant received £250,000 in damages because she witnessed her brother, an architectural student/graduate murder her mother in their home. One wonders how that can be compared with a similar amount of damages to a poor woman in a wheelchair or on elbow crutches for seventeen years- who had to wait for seven years for her case to be eventually heard and whose complete family has been scarred because the coloured mother of the family was incapacitated simple for going into hospital to be delivered of her baby- a mother who tried to throw her weight onto one leg and thus permanently tilting her body- whose whole right hip to her knee- had rotted away over several weeks whilst doctors gave her aspirins.

Where is the equity in this, one wonders. One can only conclude that there is no equity in the UK civil or criminal justice system. It depends on who you are; your accent and whether your face fits. It depends on who is the better liar. The die is loaded and justice is not blind at all.

Sally Ramage, BA (Hons), MBA, MPhil, ASLS.

Editor of Current Criminal Law
Editor of Criminal Law News
Editor of The Criminal Lawyer
Annotator in Current Law Statutes Annotated, 2006, 2009, 2010.

The directive is to blame when things get tough and therefore to pass the “hot potato”. If the percentages quoted above of 10% increase in the number of claims, 18% increase in the number of requests for assistance and 56% increase in the number of disciplinary actions are all down in most part to the actions of solicitors then they should really be proud.

It’s like everything in life with every profession having its purpose. Where doctors should practice the science of medicine and should contribute to the overall good health of the society so too believe it or not lawyers should practice law and should argue for justice for the benefit of the society at large. By consequence if there are more successful arguments that means a job better done because no one would settle from a well funded position unless they are at wrong to some extent. Asking to be protected by the potential financial impossibility of the claimant to pursue legal action after the same claimant is put in impossibility to pursue his life pursuant to some alleged medical malpractice is clearly not the way to go. Ensuring that standards are implemented and remain tightly applied and raising awareness about professional negligence however may be a start. The alternative is to implement a non-merit based social system where every claimant of today would get help regardless of the blame associated with the doctor but equally a system to deal with professional negligence separately from the issue of redress has to remain and then where would the blame lie. A safe bet will be still with the lawyers because they are not dressed in white or light green but in suits with a tie.

Interesting that one statistic they have not published is the percentage of legal actions brought that they defend and then either concede and settle or the action proceeds to trial and a court determines there was indeed negligence. All such determinations either before or at trial are in my experience heavily reliant on the views of indepedndent medical experts

Actually, the report (http://www.the-mdu.com/associatedArticles/ann_rep2011.pdf) is quite and interesting and impressive document and is not as imbalanced as this short article may suggest. When did we last see a report which contained equivalent information about claims against solicitors or other professionals?

Perhaps doctors should forgo theie astronomical fees unless they gety a sensible outcome for their work!

The MDU would be better advised putting their resources into investigating potential claims, if this article is anything to go by.

The approach is simple - if there was no negligence there would be no claims. Any solicitor who takes on a 'no win no fee' clinical negligence case not believing it has true merits potentially commits financial suicide. The clue is in the term - no win no fee - to lose such a case for a business where time is quite literally money is catastrophic and a risk which cannot be taken willingly. The system of 'no win no fee' therefore in fact regulates itself as risky cases are not pursued.

As for damages - as the MDU well know that is closely controlled by the judiciary, which means what they propose to do is a very thinly veiled attack on the discretion of the judiciary to award the appropriate sum in damages to injured Claimants. It is a basic legal principle we all learn in the first few days of our legal training that the law of negligence requires a person to be put back in the position (as far as money is able to do this) they would have been but for the act of negligence - if the MDU want to try to argue against that centuries-old legal principle, for their own commercial reasons, then good luck to them. As above, they and all Defendant organisations would be better advised devoting their time and resources to timely admissions on indefensible claims as a better way to drive down their costs.

With the help of the current Government, the Defendant organisations have already succeeded in making potentially constitutionally-damaging changes to our civil justice system. This looks like a blatant attempt to try and push that further - which may be pushing one's luck too far.

Law Society Gazette- post and comments from 14 August 2012: “No Win- No Fee”

In order to enlighten Gazette (and Google) readers, after the cryptic comment by “James” on the 14th August at 19: 07, the Law Society has a Business and Oversight Board, newly constituted on 1 February 2012. Council members are as follows:-

Andrew Caplen –Treasurer Jt Chair;
Graham Chisnall -SRA Board member Jt Chair;
Lucy Scott-Moncrieff- President;
Robert Heslett -Council Member;
Desmond Hudson -Chief Executive, Law Society;
Antony Townsend -Chief Executive, SRA;
Charles Plant- SRA Board Chair;
Shamit Saggar -SRA Board Member;
David Fisher -Member
Nick Denys- Committee Secretary.

The flurry of a total of 15 comments following my commentary is illuminating and unsurprising, most possibly motivated by racism and sexism which I have suffered from, in every step of my life. The Protection from Harassment Act 1997, section 1 (2) comes to mind (notwithstanding freedom of expression rights). Section 1 (2) states:

“For the purposes of this section, the person whose course of conduct is in question ought to know that it amounts to harassment of another if a reasonable person in possession of the same information would think the course of conduct amounted to harassment of the other.”

After the commentary on Tuesday, 14th August at 17: 35, there came a stream of 15 comments from the
“Medical Defence Solicitor” on the 14th at 18:18; “James” at 19: 07; “Dan” on the 15th at 09: 10; “Success Fee Limited” on Wednesday, 15th at 9: 30; “Anonymous” on the 15th at 10: 05; “Anonymous” on the 15th at 10: 05; “Anthony (sic)” on the 15th at 09: 46; “Andrew” on the 15th at 09: 57; “Anon” on the 15th at 10: 22 ; “Anani Yogadeva” on the 15th at 10: 49; “Me” on the 15th at 11: 52; “david taylor (sic)” on the 15th at 11. 55; “Deborah Daniels” on the 15th at 13: 15; “Anonymous” on the 15th at 16: 43; “Paul Romley” on the 15th at 17: 10; and “Me” on the 15th at 19:24.

Very pertinent was the one-word “grunt” allegedly by one “david taylor”, the 11th comment my commentary on John Hyde’s 406-word article on the MDU- and if indeed this word was from the Liverpool criminal defence sole practitioner, this response can possibly be as a result of years of dealing with criminal suspects at the police station. Not eloquent. May I challenge it?

Let me declare that I love reading the Gazette with its snippets of news and particularly its legal updates. I love the law. However, I fear that the profession does not meet the mark in these times now that the world has become ‘a global village’. Many members of the profession are perhaps unaware or perhaps do not care about a major upcoming upheaval and refining of the profession so as to comply with regulations and consumer demands. It must become “fit for purpose”, which is what I was getting at- that the many sticky issues of sexism, racism, elitism, inadequate training, inadequate standards, arrogance, and bias need to be addressed so that consumers are kept safe and can rely on the legal system.

The SLS ran a set of one- day conferences at the Institute of Advanced Legal Studies this year- with a view to responding to a forthcoming government consultation on the legal profession, by gathering evidence on the profession. Is the profession ‘fit for purpose’? “ Reviewing legal education: the way forward” was attended by the Chartered Institute of Arbitrators, Professor Fiona Cownie, Chair of SLS Legal Education Committee, Baroness Ruth Deech, Chair of the Bar Standards Board, Tony King, Clifford Chance, Chair of the Law Society’s Education and Training Committee, Professor Andrew Sanders, Chair, Heads of University Law Schools Committee, Professor Gwyneth Pitt, Chair, Joint Academic Stage Board, Professor Avrom Siems, Director , IALS, LETR research team, Ms Josephine Waite, Legal Directorate Department for Education, Mr Stuart Weinstein and Ms Alexia Zimbler of the Bar Standards Board, Professor Michael Zander of the London School of Economics, Professor Keith Stanton, President, SLS, and many others.

Is the UK law degree syllabus adequate? Is the training period satisfactory? The SRA itself plans an independent survey on racism in the legal profession (by an independent law professor). See Jonathan Rayner, ‘Professor Gus John to carry out SRA racism review’, Gazette, 7 August 2012.
To “david taylor (sic)” I say, ‘have a good evening’. ( 738 words).