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The rising cost of clinical negligence claims

December 12th, 2017

You may have read online a number of articles about the increase of babies being born with brain injuries. These stories are really very sad to read, mainly in part because it concerns a child and their quality of life. But what does it say about the state of our NHS?

Clinical negligence claims have been brought for many years, and will continue to do so whilst those claims have prospects. The cost of litigation to the NHS has increased in the last few years, mainly in part because claims are bring brought, and met, either by settlement or judgment by the courts.

However, you have to consider that these payments are not made lightly. Whilst there might be smaller medical negligence claims being met, the larger payments usually are linked to life changing injuries, both for the individual and family.

Sadly, brain (or neurological) injuries are the most significant. This may include where a child has cerebral palsy due to negligence during child birth, or a doctor has failed to diagnose and treat a mother during her pregnancy. Either way, these injuries have a substantial impact on the patient and their family which will usually include medical treatment and care for the rest of their lives.

Unfortunately, the statistics show these claims are on the rise. Peter Walsh, Chief Executive of AvMA (a charity for patient safety and justice) has said that this increase could be due to staffing issues.

But the problem really is the money and the vicious circle that the NHS seems to have got itself into regarding these claims. The government has been working on trying to reduce lawyers’ costs claimable for these claims, yet it has failed to address that there may be a “defend and deny” culture.

NHS Resolution (formerly NHS Litigation Authority) has in the past taken a view to deny liability in a claim, and sometimes go all the way to trial, rather than considering assessing a claim early on, and admitting liability where it is due. This in turn could save the NHS a lot of money, because it would prevent costs from being occurred in trying to prove a claim that did not need to be incurred in the first instance.

What this means is that the government is considering introducing fixed costs for clinical negligence. Whilst the idea of lawyers being paid less money won’t impact many people, what it does mean is that it could prevent the most vulnerable in society gaining access to justice; this is an area AvMA and Peter Walsh have been advocating proactively.

At the moment, the final decision on fixed costs is still under review. Naturally, it is an area that all those involved are watching with bated breath.

Either way, pursuing a claim for medical negligence still has the same legal test, and those considering bringing a claim should take advice sooner rather than later. The change in the law may affect how your claim is funded. We at Lennons Solicitors offer claims with prospects on a no win no fee basis, and we always act in your best interest to secure the best possible outcome.

Katarina is a solicitor in the Dispute Resolution department at Lennons. She undertakes all areas of dispute resolution including clinical negligence claims and personal injury. She advises and acts for individuals and body corporates on an array of litigation matters including breach of contract, debt and insolvency, professional and medical negligence, personal injury and property.

For assistance on litigation and dispute resolution issues, please contact our Dispute Resolution department on 01494 773377 or email us at hello@lennonssolicitors.co.uk.

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