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Thursday, 18 February 2016

NHS Catalogue of Blunders - these are not the fault of victims

I have written many times about the conduct of the NHS Litigation Authority, who regularly attack the victims of medical negligence and their lawyers.

Back in August 2015 I wrote the following in relation to plans to limit the legal costs recoverable by successful Claimants –

‘What is clear, is that this is an attempt to reduce the number of genuine claims and the amounts payable to victims. If the NHS does not have to pay full legal costs in those cases where they are clearly at fault, it is the victims who will have to pick up any shortfall.’

These attacks are designed to blame victims and their lawyers for allegedly draining the sparse resources of the NHS. Anyone who deals with such cases on a regular basis knows where the real problem lies. There are too many avoidable accidents. If there was a major drive on reducing these incidents then dramatic savings would be made.

But it is always easier to blame the lawyers.

All of this is highlighted by today’s disturbing report on what are ironically called ‘never events’. These are the very worst blunders which should never happen. The report talks of a poor man who had a testicle removed instead of a cyst. It mentions feeding tubes being fed into lungs rather than stomachs. Interestingly I am handling a tragic case where the opposite happened. A ventilation tube was mistakenly inserted into the oesophagus rather than the lungs of a young heart attack victim. She suffered massive brain damage and died within days. The list is frightening.

The NHS says that these events are rare. Thankfully that is right. But they still should not happen. And they only represent the very worst blunders, the sort that should never happen in any circumstances.   There are many more mistakes that are not so bad as to be included in this report.

In none of these cases are the victims to blame.

Lives can be changed forever. Those who represent victims work tirelessly to secure justice for them. Instead of blaming them for the ‘costs’ to the health service let’s hear the Department of Health work just as tirelessly to ensure that these incidents do not happen again.

Friday, 12 February 2016

Medical Negligence Costs - a false economy?

APIL has published its response to the proposals for fixed fees in Clinical Negligence cases. Interestingly they emphasise the important and unsung screening work done by claimant’s legal advisers.

This is something which I have mentioned in the past. It is very easy to overlook the importance of this in weeding out the weaker cases and ensuring that only the clearest of cases are presented to the NHS. I have never seen any acknowledgment of this by the government or NHSLA.
The impression is given of aggressive ambulance chasers who are simply building up case loads to attack the beleaguered health service. In fact, in the case of my own firm an average of 60 cases is pursued for every 1000 unhappy patients

In most cases this work is done without payment. It is, of course, in our interests to select the strongest cases. In a world of no win no fee litigation – imposed by successive governments – no litigator can earn a living by taking on weaker cases. This will ultimately lead to a reduction in the number of ‘cutting edge’ cases that have historically developed the common law. But that is another topic for another day. But the reality is that the volume of cases faced by the NHS is controlled by this unpaid work done by claimant lawyers.

I have to agree with APIL that a squeeze on payments in lower value reduce lawyers’ capacity to carry out this exercise. Although I suspect that many firms will still be cautious, for the sake of their own commercial viability. Equally they do have a point that a deluge of poorly screened cases will ultimately lead to much higher costs overall.

I am not in fact against the idea of fixed costs in principle. Any arrangement that rewards speed and efficiency must be preferable to one that encourages the chalking up of as many hours as possible. But if the aim is to use this to reduce the number of claims then any economy will be false. 

This is of course based on the government’s fixation with blaming victims and their advisers.

Far more significant savings will be achieved by a focussing on the avoiding of negligence in the first place. It would also lead to huge savings if early admissions were made. How often to these cases develop into a war of attrition only to settle at the 11th hours after eye watering costs have been incurred? 

The NHS has notably, been criticised by the courts for refusing to mediate in some cases –

These fundamental changes in attitude will achieve far more than any tinkering with the costs regime.

Wednesday, 10 February 2016

Jackson on a CLAF - what is it and what will it achieve?

Lord Justice Jackson delivered two significant speeches last week whilst I was supping Tequila in Mexico. Most of the coverage has, rightly, focussed on his proposals for fixed fees in all civil cases up to £150k.

His second speech on 2nd February was headed  ‘The Case for a CLAF’. This is about a Contingent Legal Aid Fund to improve access to justice. The idea of a CLAF has been knocking around for most of my 30 odd years in the law. It raises its head whenever traditional legal aid is under threat. I first came across it when I worked in a Law Centre in the 1980s.

The simple idea is that such a fund would back ‘deserving cases’ for those who do not have the means to fund litigation. In some ways it works in a similar way to Civil Legal Aid. The Fund supports the case and is then reimbursed from costs recovered by the successful party. On top of this a slice of the damages goes into the fund. This contribution is the basis for the funding of the scheme.

In his original report, Jackson was equivocal. In his recent speech he has called for the Legal Profession to set up working parties to take the idea forwards and called upon the government to give ‘appropriate’ words of encouragement (!).

I have to start out by saying that any scheme that improves access to justice has to be considered. But there are concerns.

When the idea has been mooted over the years one objection has been that it leads to a reduction in damages. This was touched on by Jon Robins in the Law Society’s Gazette back in 2011.

At that time a client who was covered by a CFA faced no deductions. But the world has changed since then. Most firms now accept the commercial necessity of taking a cut of up to 25% damages from damages since the recoverability of success fees was abolished in 2013. I expressed major worries about this at the time. But to be honest, I have not had a single complaint from a client. If lawyers can take a piece of the cake then why not have a legal aid fund which does the same in order to avoid injustice? So perhaps this is not the concern that it was.

But there are still problems. The first concerns those cases that would be covered. I doubt that any assessment of a deserving case would include one for which a CFA is available and which lawyers are willing to take on. A CLAF certainly has no role to play in crucial areas such as welfare benefits or family work. So who will actually benefit?

It will inevitably be limited to those cases which can produce some compensation from which a slice can be taken. But they will also be those cases which cannot be backed by a CFA. So will only weaker cases be eligible? And if it only these cases, will they produce sufficient income to maintain a viable scheme?

It could be argued that the fund could cover those non personal injury cases to which QOCS doesn’t apply. But that then begs the question; who pays the adverse costs in losing cases? Jackson himself touches on this in his 2nd February speech. If QOCS is extended to other cases then they no longer need any special fund.

I am not dismissing the idea. 

Anything that offers some streams in the desert is to be welcomed. But this will not have any great impact on access to justice generally. Unless and until we have a fully funded legal aid scheme them such access will remain a waste land.