Two bites of the apple- limitation in professional negligence cases
It was good to hear Niall Dickson, the Chief Executive of NHS Confederation, on this morning's BBC Radio Four Today programme acknowledge that "not all lawyers are ambulance chasers". He was considering the rise in the cost to the NHS of medical negligence claims.
Niall Dickson acknowledged that a very significant driver for the hike in cost to the public purse is the change in the discount rate. That matter needs to be tackled (and is being) but where wisdom lies on that issue is difficult. Balancing the claimants right to full compensation with the increasing burden to the public purse of higher awards is not easy.
Niall Dickson also pointed out that some cases are abandoned at the doors of the court. As I heard him speaking I was expecting him to say that NHS Resolution (NHSR) needs to make sure that meritorious cases are settled earlier but he did not, he pointed out that claims sometime take up time and resources and then melt away as the court date beckons. It saddens me that some claimant lawyers are taking claims all the way to the doors of the court before realising the case has no merit. I would be interested to know whether those claims are being run by non-specialist lawyers. There are various panels of specialist lawyers that require rigorous assessment for entry. I would suspect that panel members are far less likely to run non meritorious claims. Anecdotally the defendant firms much prefer having a specialist solicitor on the other side when dealing with the claims.
As a claimant lawyer I would observe that, whilst I accept the NHSR has recently taken some steps to ensure cases are settled earlier, more could be done in this area. Unfortunately we are still seeing claims that could have been settled at an earlier stage defended almost to the doors of the court .
My worry, on listening to the piece this morning is that there are two separate issues: firstly the increase in damages awards and secondly the costs of claims in terms of legal fees. They require different solutions. However, for those who wish to place the blame upon the "ambulance chasing lawyers" the temptation is to merge the two. My view is that the separation must be maintained, if it is not it will be the damaged patient who suffers and more generally, the public's trust in the ability of the NHS to appropriately look after those who have unfortunately been injured as a result of poor care.
One possible solution, that I consider could reduce cost, would be a meeting with all those involved ( importantly including the patient and/or family members) with their experienced legal representatives, at a very early stage. Such a meeting would be with the aim of identifying and narrowing the issues being looked at and understanding what all parties need from the process. My view is that such a start to the process and could promote earlier settlement. This would save costs and time. It might even usher in a different structure to ensure learning from mistakes.
If you have been affected by the issues discussed in this blog, please contact a member of our Clinical Negligence team. Alternatively, you can contact us on 020 7814 1200 or email us at firstname.lastname@example.org.
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