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The price of justice.

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A report in The Sunday Telegraph of 1st February 2014 alleged that “Ambulance-Chasers push NHS costs bill to £200m”The article went on to state that some lawyers are claiming costs and fees up to 10 times more than the damages awarded to the patients that they represent.

The article went on to quote Catherine Dixon the Head of the National Health Service Litigation Authority. It highlighted some law firms who had recovered costs well in excess of the damages they recovered for clients. It also accused solicitors of “front-loading” costs by hiring expert witnesses and conducting extensive investigations for relatively low value claims.

All in all the article did not portray clinical negligence solicitors in a very flattering light. Nor did the article provide any comments from claimants solicitors or indeed from claimants themselves. It may help if we set the record straight.

1.       No compensation – no costs

It is important to remember that costs will only be awarded where a claim has been successful. It has been a long tradition in the law of England and Wales and the loser pays the winners costs. By definition therefore these costs are only being paid by the NHSLA because a claim has been successful i.e. NHS care has found to be substandard or negligent and compensation has been awarded as a result.

Pursuing a successful clinical negligence claim is not easy or straightforward. Initially the Claimant has to prove that care provided has been substandard or negligent. However strongly an individual may feel about the treatment they have received this will not be enough to persuade a Court that the clinician was negligent. The Court will need to see independent medical evidence to confirm that treatment fell someway below the standard of treatment that the Claimant could reasonably have expected to receive. The claimant also has to prove that they have suffered loss as a direct result of the failings. Whatever the rights and wrongs of cost claims, they are only payable because the claimant has been suffered damage caused by substandard care.

It does not take a great deal of imagination to identify that fulfilling the burden of proof in these cases is an uphill struggle for Claimants. Our assessment is that about 1 in 5 of enquiries received result in a viable claim for compensation. Of this number perhaps 2/3 are subsequently successful and result in awards of compensation. Each and every one of these individuals however has genuine concerns about treatment. Some have lost loved ones, others have seen a family member suffer a devastating and life changing injury.  All deserve to be heard.

2.       Front loading the case

Investigating a claim is not a simple process. Medical evidence may be needed from a number of different specialists. Depending upon the type of report and the issues at stake the costs can be anywhere between £1,000.00 and £10,000.00 per report. Where these reports do not find that care has been substandard then it is often the case that the claim cannot go any further. In those cases the NHSLA will not be picking up a bill at all.

If the initial report is helpful then it is often the case that supplementary evidence is required to establish the link between any substandard care and any subsequent health problems. It is often this report that determines the value of the case.

It is perhaps therefore not surprising that it is quite feasible for a solicitor to have incurred tens of thousands of pounds of costs in a case only to find that the actual damage caused to the Claimant by the negligence was very limited.

3.       Claimant –v- Defendant

It is somewhat disingenuous to compare the costs of Claimants solicitor with the cost of the NHS’ own lawyers. The burden of proof is on the Claimant. This means that the work in establishing, bringing and proving the case is for the Claimant to do. The Defendant need not do anything and in fact in a majority of cases the NHSLA does very little. The majority of claims that are submitted to NHS Trusts are forwarded to the NHSLA. They rarely agree to investigate or provide a meaningful response until a detailed and fully supported letter of claim is sent. This generally requires the Claimant to obtain medical evidence at the outset.

Only a very small proportion of enquiries that come to us are ever the subject to letters to the NHSLA. It is difficult to avoid a conclusion that the NHSLA is simply a victim of problems within the NHS itself. From our experience we are confident that compensation and costs could be drastically reduced if the NHS had a more effective way of dealing with enquiries, complaints and criticism. The majority of our Claimants take no joy in suing the NHS or in depriving it of funds. However by the time they contact us they have normally exhausted other avenues and are frustrated and upset by the obstinate, defensive conduct of the authorities.

Ms Dixon says that the NHS could save £69 million each year if the cost of lawyers representing Claimants was capped at the same level as the cost of the health services lawyers. Ms Dixon may find that the NHS could save a vast amount more if it simply had an open, honest and transparent approach to concerns that are raised.