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Friday, 30 June 2017

Medical Negligence - Striking a massive imbalance

The Medical Protection Society has published proposals calling for the ‘urgent’ reform of the procedure for pursuing claims for damages for Clinical Negligence. Their plan is called – Striking the Balance. It is interesting that all of their points would heavily weight the system against victims. 

There is a briefing document available at –

Here are some of the highlights

  1. A limit on recoverable care costs based on ‘the realities’ of providing home based care.

This proposal assumes that victims and those who care for them are simply seeking to make as much money as possible. This could not be further from reality. Most victims prefer to receive care from family members if possible. In most cases this is what happens. So if a victim is unable to cook their own meals, in the vast majority of cases it is family members who pick up the burden. There is a right to claim for their time but this is already discounted. You cannot claim damages based on the 100% cost of employing a carer. Rates are already reduced by up to 30%. Many victims are so severely disabled that they require specialist care, often 24/7. I cannot imagine that the MPS are seeking to have those costs reduced.

  1. Limiting loss of earnings to national averages so that higher earners get less compensation.

This would create a ‘first’ in English Law. Damages are calculated by reference to what is needed to put a victim, as far as possible, in the position they would have been if the incident had not happened. So a person who earns £100k a year is so badly injured that they will never work again. The national average salary is £27,600.00. So where does the poor victim find the shortfall of £72,400.00? Who pays their mortgage? They are left with a life changing injury and could be forced out of their house into the bargain…

  1. An introduction of fixed costs for claims under £250,000.

As the MPS know, this is currently the subject of two separate consultations. The government has proposed a scheme for limiting the recoverable legal costs in cases worth up to £25,000.00. They did flirt with the idea of £250,000.00 but soon dropped it. Lord Justice Jackson is currently working on a report looking at the fixing of recoverable costs for all cases up to £250,000.00. He has suggested that it would be difficult to extend such a scheme to Clinical Negligence in most cases. This is because these cases are inevitably expensive to run – not least because they are so often contested until the very last minute.

  1. The introduction of an ‘ultimate’ Limitation Period of 10 years.

This is the most jaw dropping proposal, and again would mean introducing entirely new law just to save money for the MPS. At the moment the Limitation Period in most cases is 3 years. This runs from the date the victim ‘knows’ or should know that there is likely to be a claim. So if I woke up from a tonsillectomy with a leg missing it would be fairly obvious when the 3 years began to run. Sometimes an injury, say a fracture, is missed but the truth does not come out until years later. So the Limitation Act 1980 says that the clock starts ticking when the victim knows what has happened. In the case of say a child who suffers catastrophic brain injury at birth, there is effectively no deadline if they are rendered incapable of deciding for themselves whether to pursue an action. The same goes for an adult who loses all capacity to manage their lives. These victims are the most badly affected by negligence. They are, by definition, the most vulnerable members of society. Why should they lose access to any justice because somebody else does not know to bring a claim on their behalf?

The MPS seem to have learned lessons from RTA insurers. If they lobby hard enough they hope to get their way – regardless of the clear injustice that would follow to those who are least able to speak for themselves.

In fairness, the report also touches on the need for the avoidance of incidents. But the briefing document makes it clear where their main concern lies.

The cost of pursuing claims for clinical negligence is undoubtedly high. But you don’t strike a balance by passing the burden to entirely innocent victims.

Sunday, 11 June 2017

Introducing our new Justice Minister!!!

Well it has been an interesting few days. Who would have thought that the outcome of the election would have been a hung parliament and deals done with the DUP to shore up a minority Tory government?

But there was one thing that was widely predicted. This was the removal of Liz Truss as Justice Secretary. Her days were clearly numbered after a number of gaffes, not least being her failure to robustly defend the judiciary following the Brexit decision and the Daily Mail’s infamous ‘Enemies of the State’ headline. This resulted in a withering attack from the Lord Chief Justice –

This has also led to calls for any replacement to be a lawyer.

Today we hear that she has been sacked by Theresa May. It was with some excitement that many of us waited to find out about her replacement. And it is ….. David Lidington. Who?

Well he is the Honourable Member for Aylesbury, Bucks. He was Minister of State for Europe until 2016. He has been leader of the House for a year. His other claim to fame is about expenses. According to the the Telegraph he submitted claims in 2016 for cleaning, L'Oriel moisturisers, body spray and Sensodyne toothpaste!

 But above all, he is not a lawyer!

He is no fan of Human Rights and is known to favour abolition of the Human Rights Act. To be honest these come as no surprise. It is well known that Theresa May is hostile to the HRA.

But the appointment of a fourth successive non lawyer Lord Chancellor is a major disappointment. You would have thought that the disastrous experiment of Grayling, Gove and Truss would have taught the government something. Of course, it is not compulsory for the Secretary of State to have relevant qualifications. You would not expect all Health Minsters to be Doctors or Transport Ministers to be Highways Engineers. But the Justice role is different. It is not a purely political appointment. The Justice Minister carries a huge constitutional responsibility as Lord Chancellor.  

The Constitutional Reform Act 2005 requires him/her to swear the following –

"I, , do swear that in the office of Lord High Chancellor of Great Britain I will respect the rule of law, defend the independence of the judiciary and discharge my duty to ensure the provision of resources for the efficient and effective support of the courts for which I am responsible. So help me God."

Will Mr Lidington understand this? Will he ‘defend the independence’ of judges even if this means upsetting the right wing tabloid press? Will he appreciate the importance of ‘justice’ as something more than a commodity? He might surprise us (!) but this is a lost opportunity to give back some credibility to an important position, which has now seen three incumbents in two years!

Time will tell what Mr Lidington will make of the pressures from the insurance industry to press on with attacks on the rights of accident victims.

Of course, that time might be short!

Who knows who will be at the helm in October 2018?

*Thanks to my friend Mike Williamson (Williamsons Solicitors) for this link