The Conservative Government is proposing to impose a fixed costs regime for all medical claims worth up to £100,000. This has been announced without any proper consultation or analysis of the likely effects on injured patients.
Such a move will inevitably lead to a situation where Defendants are encouraged to deny allegations of negligence, leaving injured patients to carry out investigations that would not be paid for even if negligence was proven, and their claim succeeded.
Why do I say this?
If costs are fixed, defendants will be given a clear incentive to deny responsibility for most claims and thus force injured patients to run up high costs proving what happened in their case. The costs incurred could then not be recovered as they would be fixed. This would mean many worthy claims being abandoned as they would become uneconomic to pursue.
Needless to say, this would provide a totally unfair balance between the interests of injured patients and the defendants.
IF the Government is intent on proceeding with a fixed costs regime (and I would argue that the current system of CFA funding works well and does not need replacing anyway), it is essential that there should be safeguards for injured patients put in place. I suggest that if the regime is to be introduced, the following obligations should be imposed on defendants:
- To investigate claims and produce a detailed response within a specified period of time – say 4 months.
- To either make full admissions in the response or provide clear reasons for denial
- In the event of denial, the detailed response should include the reports on liability/causation upon which the denial is based.
- Trial of the scheme for claims worth up to say £5,000 before it is extended to higher value claims
Failure to provide proper safeguards will result in a grossly unfair situation for injured patients and will of course impact disproportionately on the poor, disabled and disadvantaged.
The National Health Service (NHS) was created out of the ideal that a good standard of healthcare should be freely available to all, regardless of wealth. When the then Minister of Health, Aneurin Bevan launched the NHS it was based on three core principles:
- That it meet the needs of everyone
- That it be free at the point of delivery
- That it be based on clinical need, not ability to pay
But, if something was to go wrong with medical treatment received from the NHS, is it ethical to sue?
Some will argue that suing the NHS is wrong both morally and financially. After all, medical staff are only human and everyone makes mistakes at one time or another. But on the other hand, if a person is treated negligently affecting their quality of life and rendering them unable to work, should they not receive support from those that caused the injury?
It is important to remember that the National Health Service do not pay compensation unless negligence can be proved meaning that a medical professional body would have acted in a way that other members of their profession would condemn as below the acceptable level of competence and that such actions directly lead to injury or damage of the complainant as a result.
In reality, the people who sue the NHS just want their lives to return to the way it was prior to the negligence. Of course, if successful they will receive a financial award but the award given will not put the complainant in any better position than before the negligent treatment. In practice, the complainant will not benefit financially from what has happened to them. In most cases people just don’t want what they have experienced happening to others.
A civil claim can often be the only way to find out what really happened and instigate change for the better. The NHS often does not investigate when things go wrong so future improvements are often made thanks to patients that sue. We often get Letters of Apology explaining how improvements will be made in future, but generally only after litigation.
I am of the opinion that if a professional medical body treats a patient negligently meaning that they can no longer look after themselves or loved ones, they should be entitled to sue the organisation at fault for compensation.
The Parliamentary and Health Service Ombudsman (“PHSO”) is a body set up by Parliament to investigate complaints that have not been resolved by the NHS in England and UK government departments and other UK public organisations. It estimates that complaints about potentially avoidable deaths make up around 20% of the NHS complaints that it investigates.
Earlier this month it conducted a review into the quality of NHS investigations into complaints about avoidable harm and death. The results were alarming. The report concluded that there were serious failings by the NHS in conducting such investigations, leaving distressed patients and families without the answers and reassurance that they deserved. The PHSO concluded that amongst the factors contributing to such failings, there was inadequacy of the investigation procedures adopted, and often those investigating had received varying degrees of training, if any training at all. Some investigators were not deemed by the PHSO far enough removed from the original incident to give any objective opinion. There was also an inconsistency in the findings of the investigations.
Perhaps more worryingly, the PHSO found that where failings were identified, in some instances no action was taken by the relevant Trust to ensure that the same mistakes were not repeated.
This report has highlighted what many Claimant clinical negligence lawyers have known for a long time – that the NHS is seriously lacking a comprehensive, systematic approach to investigations. Clinical negligence lawyers are providing checks and balances on hospital Trusts where perhaps none have existed before.
It is important that we at Pattinson & Brewer continue to investigate claims and challenge Trusts in order to find answers, ensure that those responsible for avoidable deaths are held to account and that adequate training and/or procedures are put in place to ensure that the same mistakes do not happen again.
In personal injury cases, a defendant is normally considered to have been negligent if they failed to do something that a reasonable person would have done, or did something that a reasonably prudent person would not have done. In medical negligence cases, the question depends on what a reasonable person with the specialist skills of the doctor in question would or would not have done.
The term ‘negligence’ is often misinterpreted as meaning ‘gross negligence’ when in fact it can embrace inadvertent errors of judgment on the part of otherwise careful people.
In a recent case, a highly competent surgeon’s one-off error when fitting a 67-year-old woman with a hip replacement resulted in a compensation payout.
The woman suffered from arthritis and underwent surgery for a total replacement of her left hip at an NHS hospital. Part of the ceramic prosthesis came loose whilst she was recovering from the operation and the joint dislocated. She required further, disabling surgery to replace the prosthesis.
The High Court found that the experienced surgeon had failed to fix part of the prosthesis in place properly. That did not mean that he was incompetent. However, on this one occasion, the technique he had used fell short of an acceptable standard and was negligent.
A compensation settlement of £37,500 was approved by the Court.
The contents of this article are intended for general information purposes only and shall not be deemed to be, or constitute legal advice. We cannot accept responsibility for any loss as a result of acts or omissions taken in respect of this article.