Clinical Negligence - medical treatment, when it all goes wrong

Blurred out hospital ward

Ask anyone in Scotland to name their most valuable and useful public service, and they would almost certainly say the NHS. It is, quite rightly, viewed with genuine respect and affection by those who use it, and in many ways it is the envy of the world.

Despite its first class reputation and the high levels of satisfaction the NHS achieves, problems can and do arise. Clinical negligence is mercifully rare, but its consequences may last a lifetime.

The costs of such negligence are in some cases extremely high, both in terms of loss of quality of life to the victim and in the financial consequences to the health service. Compensation for negligence which impacts on a person’s quality of life and care over a lifetime can easily add up to millions of pounds.

These potentially huge sums, together with the high stakes involved and the difficulty of gathering hard evidence of culpability, make clinical negligence cases very different from other personal injury claims. They can be fraught with difficulty and take years to reach a conclusion.

There are far fewer cases of clinical negligence brought in Scotland than in England – just 426 last year compared with 11,707 south of the Border. This is because the funding arrangements for taking cases forward are very different in each country.

This is largely because of the recoverability of fees and insurance premiums from defendants – principally the NHS – in England. The amount paid out in these can be several times the value of the claim.

The premiums (to insure against the other side’s costs and disbursements of solicitors in the event of losing the case) are charged as a percentage of the success fee. These are high and therefore lucrative to insurers, so there is a ready market in them. In effect, this creates a legal free-for-all.

If the NHS loses a case, then it pays an amount to cover the claimant’s costs in every case where a Conditional Fee Agreement (CFA) is in place.

Most CFAs provide for a 100 per cent uplift in this sort of case, so if the costs were £100,000, the solicitors would actually recover £200,000. In addition, the insurance premium of late has been about 83 per cent of the initial fee, adding up to a total of £283,000. It is easy to see how the legal fees and associated costs can easily outstrip the amount of compensation awarded.

However in Scotland, the system is different. Insurance premiums and success fees paid to solicitors in return for acting “no win no fee” and are not recoverable from defenders.

If the NHS north of the Border loses a case, it pays compensation agreed or awarded plus court costs as determined by the Auditor of Court according to a set table of fees. “These are relatively low compared to English costs,” explains Sue Grant, executive board member and head of Clinical Negligence at Digby Brown, one of Scotland’s leading firms of personal injury lawyers.

“Usually a solicitor will have to do additional work not covered in the table of fees which doesn’t necessarily have to be paid for by the other side. We just have to absorb those costs. If we win, we would only expect to recover about 50 per cent of the costs for the work done from the defenders.”

Sometimes the court will agree to award an additional fee to be paid by the other side to help legal companies bridge this gap, but this is an uncertain business.

So what options do clients in Scotland with a potential medical negligence claim have in seeking access to justice?  Very few.  Legal Aid is available to only a few and the cost of insurance is very high. Fortunately as a commercial law firm, Digby Brown has access to funding through their own arms length funding company, Compensate.

“These cases are extremely complicated and we do therefore have to consider outcome versus risk,” says Sue Grant. “In most instances, we have to incur pretty high outlays before we know there is a viable case.”

Digby Brown has its own specialist clinical negligence department – something which is essential if cases are to be pursued rigorously.

The firm gets up to 20 calls a week about medical negligence cases but can only regard a small percentage of these as viable given the exacting standards and high cost of pursuing these claims.

“Sometimes the best advice which can be given to a client is to use the complaints procedure to obtain answers before considering legal action” Grant explains.

“A lot of people go to their local solicitor and may be asked to pay themselves for initial reports to see if there is a case, but they’ll then get to the point where there is no further funding available to take it forward and get stuck. Clients are then unable to fund their claim and many just give up.”

This article was published in The Scotsman on 26th March 2012 written by Andrew Collier

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