A healthy approach

Few claimant clinical negligence lawyers would agree with the maxim that there's no such thing as bad publicity. We are regularly pilloried in the press for the apparent drain on the public purse that we create with our exaggerated claims, 'no win, no fee' mark-ups and the expensive after-the-event insurance premiums we pass on to the National Health Service for open-and-shut cases.In reality, the picture is very different.

The motivation of most of my clients is not financial '“ the vast majority of medical accident victims are just looking for an admission that things have gone wrong and an apology rather than a bumper payout. Many would seek no compensation at all in return for a swift and frank explanation and apology. In too many cases, however, this is not what they get. Instead, they are frequently faced with a defensive attitude from the hospital involved. This comes at a time when the consequences of the medical accident they have endured has left them at their most vulnerable and upset. By the time such cases are referred to the NHSLA, positions have become entrenched and expensive '“ protracted litigation is the inevitable result.

Even when hospitals do settle, it is often without an admission of liability. This disappoints clients whose primary objective is for somebody to say sorry for the distress the clients and their loved ones have been caused.

Often, the problem is that the surgeon does not believe that they have done anything wrong and is supported in their view as a matter of course by the hospital management. Trying to decide whether the event is defensible or negligent is a tough judgement call. But hospitals have a responsibility to ensure that cases are conducted as efficiently as possible, for the benefit of both the claimant and the public purse.

A shorter path to settlement

A medical accident case I handled recently is a great example of how both sides can work together to ensure a swift and inexpensive outcome. The hospital did not take the approach of many by denying liability for as long as possible and forcing my client to fight all the way. Instead, the hospital was quick to provide the information that my client needed, enabling us to make a sensible claim at the outset and thereby reducing the need for expensive expert and medical reports.

Crucially, the clinician involved quickly informed my client that something had gone wrong in the procedure, rather than trying to obscure the fact. The hospital doctor's breach of duty was admitted early in the proceedings and the details of the case were forwarded to the NHSLA quickly. A sensible initial settlement offer was made by the NHSLA and negotiations were concluded within seven months of the claim first being made.

This approach made a significant difference to the final cost of the case to the public purse. It meant that expensive expert evidence reports were not needed to prove the point that the clinician had been negligent.

It also helped to keep the cost of the client's after-the-event insurance premium down to just £60, rather than the £20,000-£30,000 which could have resulted if the hospital and NHSLA had dragged their feet on the claim.

Sharing responsibility

Of course, the blame for the cost of clinical negligence is not solely down to hospitals and the NHSLA. Claimant solicitors have their responsibilities too, not least to take a reasonable and constructive approach with the responding medical establishment and not to run up unnecessary costs which make it more likely that a hospital will resist a claim for as long as possible in the hope that it will go away.

A key point here is for claimant solicitors to be careful about which after-the-event insurance product they select. Those with variable premiums keep the final cost down in the event of early settlement by keeping the premium in proportion with the progress of the case. This not only has the effect of sparing the public purse, but also provides an incentive to settle earlier where a claim clearly has merit.

In cases like this it is clear that complex legislative changes are not always necessary and that costs can be efficiently managed through better working relationships between claimant solicitors and the NHSLA and defendant solicitors. By working constructively in this way, hospitals and claimant solicitors can help to give the victims of medical accidents the closure they need quickly and cost-effectively.

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