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Counting the cost of NHS clinical negligence claims: but what lies behind the headlines?

The NHS Resolution’s report revealed that whilst the number of clinical negligence claims has decreased in the past year by 2.5%, the amount spent on lawyers helping victims to bring their claims against the NHS has increased by 19% to £498.5m. The Defence costs, i.e. the amount the NHS pays to its own legal team to defend cases, also rose to £125.7m. On top of these costs, there is the clinical negligence compensation bill itself, which in 2016 cost the NHS £1 billion.

These are eye-watering figures and few people would argue make for worrying reading when the NHS is woefully underfunded and understaffed. In some of the legal cases that we deal with, it’s the understaffing itself that has contributed to the clinical negligence claims. It can sometimes feel like we are operating in a vicious circle. However, people shouldn’t be misled to thinking that the £498.5m ‘lawyers’ bill is solely going to the lawyers that do this type of work. There are other costs that get scooped up into this ‘headline’, including expert’s fees, court fees and insurance premiums – all of which can be very expensive. For example, in 2013 it used to cost £1,275 to issue a claim at court for a case worth over £200,000; it now costs £10,000 – a staggering hike of 684%

It’s also important to remember that not so long ago, the vast majority of those bringing clinical negligence claims would be eligible for legal aid - i.e. their claims were funded by the government. However the government scrapped legal aid in all but a handful of situations, and nowadays clinical negligence cases are funded very differently. The majority of cases are conducted on a ‘no win no fee’ basis, supported by an insurance policy to meet your opponents legal costs in case you don’t succeed. Clinical negligence insurance premiums can costs 10’s of thousands of pounds. Another reason why the NHS ‘legal bill’ is so high.

It’s not just the practical financial and procedural changes that have contributed to “increased legal costs. Our years of experience enables us to reflect on the change of approach taken by the NHS and their legal advisors to cases. We frequently encounter cases where NHS Resolution and their legal advisors resist settling cases even if it’s clear that liability should be admitted and the case be swiftly settled. Instead, we’re often made to jump through unnecessary hoops, involving court time, expert evidence and, of course, additional legal fees.

Focusing on legal fees and the amount of compensation does nothing to help patient care. Our work brings us into daily contact with victims and their families who suffer the consequences of lifelong disabilities caused through negligence treatment and who deserve to be properly compensated. Without question, all of our clients would want lessons to be learnt from their case and for there to be a reduction in the incidence of negligence and improved patient safety.

Let us take it from here.

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