The ‘blame game’ over fees must not detract from the critical issue of clinical safety within the NHS.

The Gazette recently featured the headline ‘lawyers blamed for negligence fees rise’ (see [2008] Gazette, 18 September, 2). I have serious concerns that the blame game over fees is detracting from the critical issue of clinical safety within the NHS. As a former hospital manager and now as a claimant lawyer, I have seen culpable clinical accidents from both sides.

Clinical negligence is damaging to doctors, who fear reputational issues. For patients who have suffered a breach of trust in their intimate relationship with a treating doctor, it usually gives rise to a deep sense of betrayal and anger. No one should forget that doctors can only be successfully sued where their conduct has fallen short of the standards of their own medical peers.

I believe much could be done to improve the response to proven negligence, which would also reduce legal costs. My concerns are:

  • Widespread delays. Trusts often delay internal investigations and are also late in instigating independent liability reports. A shortage of medical experts willing or permitted by their professional organisations to provide reports for the court leads to long waiting times;
  • No automatic right to an apology, even when negligence is proven. Courts cannot order them. There are too few, expressing too little and too late. Lack of sympathy entrenches positions;
  • The court pre-action protocol for resolution of clinical disputes contains no requirement to consider rehabilitation at an early stage. In practice, rehabilitation offers are rare and only made once liability issues have been resolved, which can easily be a year or more into the case. This undermines so much of the potential for maximum rehabilitation benefit that it is now self-evident in personal injury claims.
  • The NHS Litigation Authority (NHSLA) is usually not ready to come to the settlement table until the case is far more advanced than for a personal injury claim, and frequently only very shortly before trial. By then a very significant proportion of costs has been incurred by both parties;
  • Clients usually hope their claim will ensure others are not culpably injured in a similar way. Section 43 of the new Coroners Act provides for the wrongdoer to submit written evidence of steps they are taking following an inquest to avoid repeat mistakes. While those bereaved as a result of clinical negligence will be able to avail themselves of this opportunity, it does nothing to cater for the group of patients who are maimed but not killed. Obstetric units account for about 60% of all claims. With increasing survival rates for babies born with disabilities, the NHSLA is facing multi-million-pound claims to recompense lifetimes of care and assistance for children damaged during labour. One would therefore expect maternity units to receive the most scrutiny by risk assessment. Yet the Royal College of Midwives has in the last week reported that their members are overstretched, under-resourced and running between beds dealing, in some cases, with three women at once. There are also many instances of staff having to work with equipment that has not been properly maintained.

The NHS is still one of our country’s proudest achievements and the vast majority of people are treated without mishap. To deride those forced into making a claim for the nightmare scenario of falling victim to clinical negligence, and then to brand them as ‘compensation hunters’ is highly inappropriate. All legal fees for helping such victims are adjudicated by the court if they cannot be agreed. The NHSLA is now reimbursed on cases they win under the ‘no win, no fee’ regime, so their balance sheet should be looking much healthier than was ever possible with legal aid. That part of the equation seems to be overlooked in their statement of costs. The cost of damages is rising mainly because of the increasing cost of care over longer life expectancies. This is no windfall to the claimant, just less of a shortfall, and therefore less of an insult to add to their initial injury.

Amanda Stevens, head of personal injury at Charles Russell, is president of the Association of Personal Injury Lawyers.