NHS versus the lawyers, round two

The war of words over who is 'milking the system' when it comes to NHS clinical negligence claims is ongoing following an investigation by the Telegraph.

The broadsheet listed the top ten NHS trusts by pay-out for medical negligence claims from 2009/10 to 2013/14, as well as the firms who received the top payments from claims, inclusive of damages and costs. Irwin Mitchell, Beachcroft Solicitors, Kennedys, Bevan Brittan, and Hempsons made the top five.

The NHS Litigation Authority's (NHSLA) accounts, expected to be published this week according to the paper, will show excessive cost fees paid out to lawyers compared with the damages awarded to the claimant. In one instance cited by the Telegraph, a patient received £10,000 in compensation, whereas their lawyers were paid almost three times that in costs.

The Telegraph's 'exposé' comes just two weeks after the Department of Health said it intends to limit the costs for claims to £100,000.

Health minister Ben Gummer said lawyers acting 'unscrupulously' were using patient claims to load grossly excessive costs onto the NHS and charge far more than the patient receives in compensation.

However, personal injury specialist and Simpson Millar partner Peter Stefanovic has pointed the finger at the NHS and its legal teams for 'routinely fighting meritorious claims and inflating costs for everyone'.

'Since a victim of a medical blunder will only recover costs if they win their case then by calling for a curb on our charges, the NHSLA is covering up its own failures and restricting access to justice for victims at one fell swoop. They themselves are the reason costs are so high.'

'The recent Sunday Telegraph investigation clearly shows that of the top ten law firms who make money from the process of medical negligence claims, seven of them act for the NHS, charging 66 per cent of the total fees.'

Nicola Wainwright, a partner in the clinical negligence team at Leigh Day, said the government's focus, which is on reducing patients' legal costs without any comment on the incompetent care that leads to the claims and costs accrued by the NHSLA, was 'extremely worrying'. The NHSLA has paid £33m to Leigh Day from April 2010 to the end of 2014.

Wainwright continued: 'There is one sure-fire way of reducing the cost of clinical negligence to the NHS and that is to improve the quality of care so there is less negligence.

'A patient's ability to seek redress should not be curtailed because the government and NHSLA cannot get its own house in order.'

Laura Clenshaw is the managing editor of Solicitors Journal

@L_Clenshaw