The Cost of Running the NHS is a Constant Political "hot potato"

Martin Herson, Associate at Buckles Solicitors, gives his view on the future of clinical negligence claims:


The cost of running the NHS is a constant political "hot potato"

“Any drain on NHS resources is generally frowned upon and, in recent years, the cost of “negligence” claims brought by unscrupulous solicitors on “No win, No fee” retainers has been judged with particular disapproval.

It is time to redress the balance and explode some myths!

On 1 November, reports circulated that “fraud” costs the NHS an estimated £1.25 billion per year. The coverage highlighted the most common frauds, which include patients wrongly claiming exemptions for prescriptions and dental fees, procurement of hardware and medication from third parties, and payroll fraud, through which practitioners claim an estimated £70 million per year for work on NHS patients that is not actually carried out.

This compares to the figure of £1.6 billion, reported in September, as being the cost to the NHS of defending medical negligence claims brought in 2016. Undeniably, this is a huge sum that is predicted to increase in the future, but let us pause for a moment to consider how this is calculated.

Almost half is paid for comparatively few obstetric claims (brain damage at birth), each of which can result in awards of £10 million or more to be paid over the child’s lifetime. The figure includes the legal costs of the NHS’s own lawyers which can exceed the Claimant’s solicitor’s costs. Remember, if the claim is brought on a “No win, No fee” basis and fails, the Claimant’s lawyer does not get paid at all. The Court controls and manages the costs of any given claim to ensure that they are reasonable and proportionate.

So, what does the future hold for the cost of medical negligence?

The number of claims goes up year on year. This is because clients are approaching lawyers with legitimate reason to claim damages against a medical practitioner.

But, rather than the NHS targeting a reduction in incidents causing “brain-damaged babies” or general medical misery for patients where treatment goes wrong, the solution being sought is to fix solicitors’ costs. Although still in consultation, this change is coming.  The effect will be to reduce Claimants’ solicitors’ costs whilst having no effect whatsoever on costs paid to the NHS’s own legal representatives.

Reducing those fees on “deserving cases” creates the risk of genuine clients being deprived of specialist advice from experienced medical negligence solicitors. Access to justice will be restricted.

Further, fixing costs “too low” will undoubtedly result in the rise of claims management companies offering services (once PIP has wound down). Consequently, there will be greater numbers of spurious or ill-conceived claims and, with it, clients paying more out of any successful monetary award.

The responsible Claimant’s solicitor undertaking clinical negligence work would rather see a general shift in NHS attitude towards claims that have merit. Early acknowledgement of responsibility would see time and costs reduced. At present, we see constant denials of liability, only for a settlement to occur months or even years later with an obvious increase in legal costs being paid.

We want to see greater use of alternatives to litigation. Presumably, the 2016 rebrand of the NHS Litigation Authority to NHS “Resolution” was intended to communicate a greater willingness to resolve, as opposed to confront, through various alternative activities such as Mediation. However, generally, we are not seeing this happen. No change!

We are users of the NHS. I want it to improve but, when practitioners do wrong, I want a fair method of resolving claims.

Rather than use clinical negligence as a political football, the latest headlines on NHS fraud exceeding £1 billion per year puts things in perspective. Get your house in order. Reduce the fraud. Spend the savings wisely on improving standards. Remember, if patients were well cared for there would be no claims.“


Source: Buckles Solicitors LLP



The cost of running the NHS is a constant political "hot potato"

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