Savings on clin neg claims come at a greater cost

With cost pressures relentlessly mounting on the NHS in England, it is not much of a surprise that clinical negligence lawyers are in the government’s sights.

But the speed at which the Department of Health has acted should focus minds. Last weekend the national media was full of reports that the government is planning a clampdown on lawyers ‘overcharging’ the NHS on clinical negligence cases. (Gazette readers first knew about this two weeks ago.)

Of course the media has feasted on the idea of ‘greedy’ clinical negligence lawyers. The Guardian quoted unnamed DoH sources saying that a lawyer ‘pocketed’ £175,000 while the patient received a fraction of that in damages.

Language such as that puts a distinct spin on the coverage. Tax dodgers and expenses swindlers ‘pocket’ money – not reputable and qualified experts.

This type of ground war in the nation’s media is nothing new. Personal injury and criminal lawyers are battle scarred from governments dropping convenient figures to the media and setting the agenda. Readers in legal aid firms will also recall suspiciously well-timed releases of league tables of sums paid to top QCs.  

Clinical negligence lawyers simply cannot sit back and allow this message to sink into the popular conscience. If they want any say in this debate they must fire back immediately – letters to editors, emails to MPs, whatever it takes. Here are some arguments that need to be placed in the public mind.

Clin neg lawyers must fire back immediately. The message must not sink into the popular conscience

Claimant costs are high for a reason. Expert fees are higher, the NHS and private contractors are more willing to contest negligence, and cases take longer than ever before to settle.

As The Law Society says, ‘these cases are often complex and require specialist legal knowledge to properly support the patient during this extremely difficult period in their life. It is critical that solicitors are appropriately recompensed for the work they do for harmed patients.

‘It is therefore essential that any proposed changes to funding do not stop injured patients getting the support and advice they need following what can often be devastating injuries caused by negligent NHS care.'

Some very complex but worthwhile cases, which have relatively low damages awards at the end, simply cannot be run without accumulating hefty costs. Are we suggesting these should simply be abandoned? 

The last government took took steps to clamp down on excessive costs through the Legal Aid, Sentencing and Punishment of Offenders Act 2012, which came into force only two years ago. If ‘greedy’ lawyers are taking advantage, then let the courts punish them.

But most importantly, making claimant cases unviable to run also takes away a vital incentive to ensuring that mistakes do not happen in the first place. Medical negligence lawyers are a significant counter to bad practice.

Without them, the NHS might save money for a year or two – but at what longer-term cost?

John Hyde is Gazette deputy news editor