That is such an emotive headline – and such has been the response in certain areas of the lucrative Personal Injury legal profession.

In his speech to the Commons, Kenneth Clarke detailed the extent to which the Legal Aid budget was out of control – £914 million pounds worth out of control. He proposes to reduce it by £340 million.

No one has screamed louder than the ever expanding legal arena of Medical Negligence. It has been so very good to some lawyers.

Because of the all embracing nature of our welfare state – the NHS, owned by the tax payer, is invariably the defendant. The prosecution in these cases is also tax payer funded when legal aid is invoked. Tax payers suing tax payers.

Perhaps we should quantify ‘Justice’ in this context? Is a large cheque and a belated apology actually justice for someone whose life has been ruined by medical negligence?

The lawyers will tell you that quantum is arrived at by calculating (amongst other things) the price of the ‘continuing nursing care’ required by that person. Yet ‘continuing nursing care’ for anyone in need is already provided by the tax payer through the NHS. The lawyers will say that there is loss of wages – yet if you are unable to work again the Disability Living Allowance is provided by the State.

‘Ah But’! Say the lawyers, Mr X should be able to buy the finest wheelchair available, he shouldn’t have to rely on what the state can afford to pay for – do you see what I did there? – Because our lawyer is able to prove that this was ‘someone’s fault’ – the tax payer, via the NHS budget is still paying for the finest wheelchair that apparently he couldn’t afford to pay for via the err – NHS budget. Not only is he paying for it, but he is doing so in the form of a cheque, which the recipient is at liberty to decide that he doesn’t want to spend on a wheelchair; he is quite content with the one that the NHS has provided.

The outcome of medical negligence claims is notoriously difficult to predict. Those involving birthing problems take – on average – 11 years to settle. 11 years during which the ‘apology’ that virtually all claimants claim to have as their sole aim in taking action is not forthcoming, nor available to enable feelings to be mollified and the future to be faced, for of course an apology is tantamount to signing a blank cheque, so the apology doesn’t appear until long after the financial details have been settled.

Nor are the proverbial ‘lessons learnt’ attended to, for no fault has been proved yet; so no need for the inevitable case conference to discuss ways in which future Mothers might not be left unattended in the final stages of a difficult birth.

Nor is any money forthcoming to pay for the necessary walk in bath or wheelchair friendly shower for the fast growing child. It is for the local council to provide the hoist to lift the child who is no longer that 8lb bundle of joy but now nearer 8 stone. It is the NHS who provide, as best they are able, the physiotherapy that is so essential during the early growing months and years.

Meanwhile, the lawyers on both sides run up hugermongous bills, as they grapple with the lengthy reports from experts as to how long this child is likely to live…the defence will point to identical cases that only lived for 15 years, the prosecution pin their hopes on an obscure case of someone who lived for 86 years with identical injuries. Eventually they pluck a figure out of the clear blue sky and reach agreement.

To make matters more obscene, the money cannot be paid to the child, the lawyers will continue to earn fat fees as they ‘supervise’ the use of that money, and conjure up a ‘last will and testament’ on the child’s behalf in order that the money should have a final legal resting place – in the event that they guessed wrongly when it came to probable life expectancy.

Is this justice? Is this what that child, or more prosaically, his parents actually need?

To my mind, what they, or anybody whose life has been devastated by catastrophic injury needs, is the finest wheelchair, hoist, equipment, respite care, and all the other things that the lawyers will claim for – on day one. Not 11 years later.

The taxpayer pays for this, whether through the NHS directly or via the lawyers. Statistics published by the British Medical Journal calculate that one in ten patients admitted to NHS hospitals will fall victim to medical injury, which have now become Britain’s fourth biggest killer. These errors include missed diagnoses, slip-ups during operations, failure to identify the risks of procedures and poor or inadequate treatment.

Although many people believe that the increase in litigation against the NHS is due to the ‘compensation culture’ research shows that out of the approximate 800,000 adverse clinical events that are recorded by the NHS each year, only 1% of the victims make a claim; historically only 30% of that 1% make a successful claim.

A 2009 Sunday Times story (still online!) gives the uncomfortable facts regarding this ‘Justice’.

LAWYERS are earning £800 an hour from the National Health Service and taking “indefensible” fees of tens of millions of pounds in legal disputes. The money is coming from a government scheme intended to compensate patients for medical blunders and inadequate care, an investigation has found.

The compensation lawyers are claiming costs and “success fees” worth about £100m a year out of the scheme. In some cases the payouts claimed are 10 times more than the damages won by the patient.

Health professionals warn that it could get much more expensive. There is an estimated backlog of cases against the NHS amounting to £12 billion in claims, of which lawyers could get up to £6 billion.

That was in 2009. £6 billion which could, and should, be in the NHS budget to provide the best of everything that the disabled need, when they need it.

Do you really think that taking that money away from lawyers and putting it back in the NHS pot is denying a victim access to justice?

John
Self December 8, 2010 at 09:38

As a lawyer who acts in medical negligence cases, first let me say that
neither I nor any colleague I know has ever earned £800 an hour, and would
consider myself very fortunate to earn £80 an hour for one of these cases.
(For the last medical negligence case I settled, my total professional fee was
£1,509 + VAT. For another case which is due for hearing in February 2011, and
which has been ongoing for 11 years, I would anticipate my professional fee
will be £4,000 – £5,000: that’s if we win; if we lose I’ll be lucky to get
half that. You can try to work out an hourly rate for that if you like.) I
have also never claimed a success fee.

I’m surprised that the success rate for medical negligence cases is as high
as 30%. It’s the hardest form of negligence to prove, because of the test
which the claimant is required to pass: the Bolam test. You can read
details of that test here, but in essence it means that to prove negligence by a
doctor, a claimant must show that no reasonable body of medical opinion would
have treated him in the same way. The corollary of this is that all the health
trust has to do to successfully defend a medical negligence case is find one
practising doctor who will state that they would have treated the patient in
the same way as the doctor being sued. This is not usually very difficult.

Example: I had a client who died of bowel cancer because he was diagnosed
late. He had had a barium enema in October which showed a tumour in his bowel.
However the radiologist missed it. He was sent home, treated as anaemic and
given iron tablets, and not until ten months later was he correctly diagnosed,
by which time it was too late. His family sued the hospital but the claim was
unsuccessful because it turns out that 20% of tumours are missed on barium
enema films as a matter of routine. So because radiologists sometimes miss
visible tumours, that means it’s not negligent to miss a visible tumour.
That’s how Bolam works. The family in this case would not have
received a huge settlement if their case was successful (probably £10,000, the
statutory death payment, plus something for the man’s future loss of earnings
as he was the breadwinner of the house), nor would my fees have been large.
But they would at least have had a sense of closure and someone taking
responsibility for their father’s/husband’s death, which now they will never
get.

The easiest way for the NHS to save money on compensation and lawyer’s
bills is to maintain higher standards in the first place so that the accidents
don’t happen. (Like the midwife who didn’t read my wife’s allergy notes before
injecting her with intravenous penicillin during labour. Fortunately no harm
resulted.) The next easiest way is where things do go wrong which are the
hospital’s fault, to admit liability quickly and settle the claim. I have
never come across a case against an NHS trust where an admission of liability
didn’t have to be dragged out of them inch by inch, and usually not until
court proceedings have already begun. Perhaps they think that if they turn
down every claim, only 8 out of 10 will pursue it further and that way they’ll
save money; but medical negligence claimants tend to be particularly tenacious
and emotionally attached to their cases so they tend not to let them go; and
anyway, settling cases at an early stage where appropriate would save vast
amounts in lawyers’ fees alone.

Dave H November 25, 2010 at 18:24

The aviation industry had it right for many years, although the lawyers
have finally gotten their teeth into action. Compare this to the medical
profession, where the lawyers got in much earlier.

Right back from the Comet incidents, the industry has tried to be open
about what went wrong in a truly constructive manner. Yes, the pilot might
have made the mistake, but he did so because he’d been trained to do that, so
revise training and make sure it doesn’t happen again. Yes, if you change the
oil on all the engines at a particular service, you run the risk that if a
consistent mistake is made, you’ll lose all four engines at the same time. As
for flying through volcanic dust, we probably all know that one by now and why
the industry really didn’t want it to happen again. Sometimes it’s just an
unlikely sequence of events that cause a problem, sometimes there really is
criminal negligence, but whatever the cause, a slight tweak to rules and
procedures makes it less likely next time.

Contrast that to medicine, where if a mistake is made in the operating
theatre, it’s probably kept quiet by the team in case the patient sues, rather
than highlight the issue so that others can avoid the same mistake. There
needs to be a cap on legal fees and also on damages – much disability
insurance pays fixed sums for loss of a limb or an eye in non-medical
incidents, so this could be adapted in some way.

doesitmatter
November 25, 2010 at 18:02

I’ve great respect for your way of thinking as regards the no-fault system,
but no-fault and similar systems can also be abused, with other ways and
powers.

See here:

http://www.corruptionofmichael.com/index.html

Never mind that the person running the website is of a certain religion,
it’s not what i’m drawing attention to but the experience they relate of the
legal system. It’s not impossible it may go that way in the U.K. I can see
you’re concerned about certain abuses already.

Truthfulness
November 25, 2010 at 17:18

Anna – I take on board what you said. I think the difficulty is that in
some cases there is an ongoing problem and a claim in negligence is the only
way to resolve matters.

This is particularly the case in (for example) a case of psychiatric
misdiagnosis. (e.g. of Schizophrenia). There have been cases where treatment
for a plainly wrong diagnosis only occurred after proceedings were issued.

More generally the lack of costs in hearings involving Mental Healthor
Capacity, e.g. the Court of Protection, denies access to justice. Worth
thinking about.

The issue you raise is one of costs. I think that it is necessary that
lawyers recoverable costs be capped. At a mere (say) £100 per hour a lawyer is
still earning £3,500 a week. Or, assuming a working year of 200 days,
£140,000. Even assuming billable hours of half that annual revenues for a
lawyer would be £70,000. Assuming their firm took £20,000 the person would
still be earning £50,000.

Waddya think?

Anna
Raccoon November 25, 2010 at
17:35

Truthfulness,
I would prefer to see a ‘no fault’ system such as they
have in New Zealand. Arguing over ‘fault’ is beside the point – that person
has needs, the needs should be addressed.
One of the problems with the
present situation is the inbalance that occurs between a child whose needs
can be quantified as ‘someone’s fault’ and those which are an act of God –
both require the same services, but the service which should be providing
them has its budget denuded by the legal costs of the child with the lawyer
who could prove fault.

Christine
Hockett November 25, 2010 at 21:19

Arguing over “fault” is not beside the point if it means that the
circumstances that led to the disablement or death are brought into the
public domain and not repeated again. I am thinking of the two year fight
to get the Health Ombudsman to investigate the broken leg suffered by my
uncle whilst in hospital which they decided not to treat due to his age
and frail condition. We removed him to a nursing home where it was found
that he also had deep bed sores. I made a complaint about the bed sores,
also asking how he broke his leg. The response to my initial complaint was
that he had fallen twice. I obtained his medical notes and found that he
had fallen five times, breaking his leg on the fourth fall. The
Ombudsman’s report stated that he suffered neglect and made
recommendations for improvements on the wards concerned. Too late for my
uncle but hopefully not for someone else.
On the subject of
compensation awards , money will not give people back what they lost but
it gives them and their carers choices in how they live which they may not
otherwise have. I believed this was funded by the NHS Trusts having
insurance. I would hope that the needs of “no fault” cases would also be
provided for, but doubt they get much choice about the services they
receive.
My answer to the final question in your piece, is that
unfortunately the system is set up so that victims cannot navigate it
without lawyers at some point. I took the Ombudsman’s report to a
solicitor who achieved an “Out of Court” settlement for my aunt, which was
used to pay some of her care fees now necessitated by the death of her
husband. The answer is not a “no fault” system but an “admission of guilt”
system with compensation freely given to victims so that they can get some
choices back in their lives.