Better care would reduce NHS clinical negligence claims

Tuesday 14 November 2017

This month, national headlines have reported that ‘fraud’ costs the NHS an estimated £1.25 billion a year.

The cost of running the NHS is a constant political ‘hot potato’. Any drain on NHS resources is generally frowned upon and, in recent years, the cost of negligence claims brought by unscrupulous solicitors on ‘No win, No fee’ retainers has been judged with particular disapproval. It is time to redress the balance and explode some myths – says associate at Buckles Solicitors LLP, Martin Herson.

Common medical cons include patients wrongly claiming exemptions for prescriptions and dental fees, procurement of hardware and medication from third parties, and payroll fraud.

This compares to the figure of £1.6 billion, reported in September, as being the cost to the NHS of defending medical negligence claims brought in 2016.

Personal injury and clinical negligence specialist Martin Herson explained: “Almost half is paid for comparatively few obstetric claims, eg brain damage at birth, each of which can result in awards of £10 million or more to be paid over the child’s lifetime.

“The figure includes the legal costs of the NHS’s own lawyers which can exceed the Claimant’s solicitor’s costs. Remember, if the claim is brought on a ‘No win, No fee’ basis and fails, the Claimant’s lawyer does not get paid at all. The Court controls and manages the costs of any given claim to ensure that they are reasonable and proportionate.”

Martin added: “The number of claims goes up year on year. This is because clients are approaching lawyers with legitimate reason to claim damages against a medical practitioner.

“But, rather than the NHS targeting a reduction in incidents general medical misery for patients where treatment goes wrong, the solution being sought is to fix solicitors’ costs. Although still in consultation, this change is coming. The effect will be to reduce Claimants’ solicitors’ costs whilst having no effect whatsoever on costs paid to the NHS’s own legal representatives.

“Reducing those fees on ‘deserving cases’ creates the risk of genuine clients being deprived of specialist advice from experienced medical negligence solicitors.”

Martin says solicitors want to see greater use of alternatives to litigation, with the NHS placing more emphasis on the conduct and care of practitioners.

“Rather than use clinical negligence as a political football, the latest headlines on NHS fraud exceeding £1 billion per year puts things in perspective. The message is surely for the NHS to get its house in order, reduce the fraud and spend the savings wisely on improving standards. Remember, if patients were well cared for there would be no claims.”

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