Happily we have generally good standards of medical treatment in this country but events at the Mid Staffordshire NHS Trust and at the maternity unit at Furness Hospital, have highlighted the fact that when things go wrong in hospitals, the consequences for patients can be devastating. Which makes it all the more disturbing that bodies like the National Health Service Litigation Authority (or ‘NHSLA’) are exerting pressure on the government and the court system to make it more difficult for injured patients to bring medical negligence claims.

The suggestion is that in cases of less than a certain value, legal costs should be fixed and that the fees charged by medical experts should be limited. “Isn’t that a good idea?” you ask. “Isn’t this all about ‘fat cat lawyers’ and the ‘compensation culture’?”. Ask those questions of the injured men, women and children I act for. The answer is an emphatic “No” and I say for that for several reasons.

In April 2013, the government abolished legal aid in almost all medical negligence claims. Only some children who suffer certain types of injury at birth can now apply for legal aid. A couple of years ago the government introduced stringent rules to restrict costs and expenses in medical claims. These were so recent that it is much too early for anyone to assess whether or not they have worked. So the proposed changes – likely to come into effect in October 2016 – are additional to these changes.
Why do Trusts and the NHSLA want them to be introduced? It is already difficult to bring a medical negligence claim. The aim is make it even harder; to protect the ‘sacred cow’ that is the NHS. If you reduce the costs injured patients can recover, and limit the amounts they can pay to medical experts, claims become even more difficult to pursue.

It means that, in practice, patients are to be damaged twice: once as a result of the original medical error and once as a result of having to devote part of the compensation they are entitled to – compensation they often need to make good significant financial losses – to pay part of the expense of the claim.

Why are these claims so expensive in the first place? One of the principle reasons is that the NHSLA and medical defence organisations delay settling them for far too long. In the meantime the patient has no option but to continue to pursue the claim. As that happens, costs escalate. If the NHSLA and defence organisations took a more realistic assessment of claims and settled them promptly, costs and expenses would diminish.
For a long time now, patients with legal aid have been limited in the rates they can pay medical experts. Will the NHSLA and defence organisations be limited in the amounts they can pay? Will there be a truly level playing field? It remains to be seen.
We are happy for costs in medical cases to be fixed provided that that they are set at realistic levels and provided it isn’t the NHSLA or the government who fix them. There should be an entirely independent body to fix costs in medical negligence cases.
If you are concerned by this – and you should be – take the matter up with your MP.

Richard Blair, Partner with WBW Solicitors is a Member of the Law Society’s Clinical Negligence Panel. To contact Richard call 01803 407632 or email richardblair@wbw.co.uk.