Claimant clinical negligence lawyers are under attack. You may or may not feel sympathy for us but when we are financially restricted in what we can do we are also restricted in who we can represent. You might need our expertise one day.
The government, encouraged by the insurers and the NHS Litigation Authority wish to restrict legal costs in most clinical negligence cases. Such schemes work with small road traffic accidents – what could possibly be the difference?
Well clinical negligence is not the same as a simple road traffic accident. That is the same as saying the work of a consultant urologist is the same as that of a GP. Both may require expertise, but the expertise is quite different.
Firstly, our clients are usually injured in some way before they have medical treatment – that is why they are seeing the doctor or other clinicians in the first place. They may be elderly, disabled or have numerous other conditions which impact on the case. We are not starting with a clean slate here.
Secondly, all medical treatment risks complications. The fact that a patient has had an adverse outcome does not mean that they have a claim for clinical negligence.
Thirdly, medics have a huge discretion in what they do and how they do it in many circumstances. We have to establish that what they did or failed to do would not be endorsed by any reasonable medic. You would be surprised at the variation of medical opinion and practice.
Fourthly is that fact that many patients are treated by a huge number of practitioners, some of whom may be negligent and some may not. They could all work for the same trust or perhaps they work as GPs, outs of hours services, ambulance staff, emergency doctors, radiologists and so on. We need to compare like with like. We cannot have a GP expert review the whole care of the patient when admitted to hospital. We may need several experts. Clinical negligence is unusual in the number of experts often required.
Finally most cases are disputed. Sometimes reasonably so, often not. Unlike a road traffic accident where on the whole the rules of the road are clear, the uncertainties in clinical practice are enormous and the defending parties rarely accept they are at fault at the outset.
All of these factors go to increase costs.
So what are the legal costs that are payable by the other side in a clinical negligence case?
The first are the costs of the lawyers. In fact the hourly rates charged by claimant lawyers are less than those charged by lawyers in other areas of professional negligence, for example, accountant, surveyor, or solicitor’s negligence . Clinical negligence is actually the cheaper end of those areas.
Secondly there are the experts’ costs. I recently was contacted by an expert who had charged £3,000 or so for a medico-legal report. Had this been a straightforward personal injury case, the cost of a medical report, which would have dealt with very straightforward injuries, would probably have been in the region of £600. This was a clinical negligence case in which our expert was expected to identify any negligence which might have taken place, what this actually was and whether any specific damage occurred as a result. £3,000 for such a report is by no means unusual and the work of an expert throughout the case has to be paid for. These are experts who are prepared to stand in Court, defend their opinion and identify where other doctors have failed in their work.
By their very nature, these are medics who have significant expertise. Whether it is appropriate or not they are expensive.
Then, as with all the claimants, we have the responsibility to prove a case. It is our role to obtain records, sort and check them. It is our responsibility to develop a legal case which will be put to the other side. The case we start with and the case the patient thinks is appropriate, may turn out not to be correct, depending on the evidence. None of this concerns the other side. They become involved only after the case has been investigated and formulated.
When we are putting a case together we have some (but often not all) medical records and perhaps the statements of the client or their family members, most of whom are not medically qualified and do not know the whole picture through no fault of their own. When the defendants come to deal with the claim, they have access to the medics who provided the care, who wrote the notes, who undertook the procedure, who are familiar with the terminology and with any issues. The advantage is obvious.
In addition we need to obtain insurance to protect our clients against the risk of having to pay expert fees if their case is unsuccessful. Few clients can afford the cost of experts to investigate the case. We need to protect them against that risk and the cost of that insurance can be recovered from the defendant.
There are of course endless media comments about costs run up by greedy claimant lawyers. According to some the defendants have no control over these. That gives the impression that they have to pay them regardless which come as a surprise to the rest of us. The court system has, and has always had, a very robust system of specialist judges who review costs in dispute and the defendant only pays costs which those judges consider to be reasonable and proportionate. I don’t know a lawyer who thinks that system is generous. Quite the opposite.
As a claimant lawyer and with my client’s authority I can incur whatever costs I like. I cannot however expect the defendants to pay them. For this reason all experienced lawyers seek to recover reasonable costs taking into account that this is not straight forward litigation. If the defendants don’t want to pay them, they don’t pay them. They wait often a year or more and ask the costs judge to decide. I am not sure many businesses would wait perhaps from the start of the case to the end and then another year (perhaps 4 or more years in total) for payment. We are expected to do so. It is a myth that whatever bill we put forward must be paid.
The reality is that there are two things which would reduce costs significantly. Firstly and most importantly – defendants could learn some lessons from cases and try to reduce negligence. As a claimant lawyer we often see similar issues arising time and time again. Surely someone could collate that evidence and come up with a protocol for avoiding damage?
Secondly defendants could admit liability earlier. That would mean more experienced staff (on both sides) dealing with initial claims but we know more experience leads to reduced costs. The investment would surely be worthwhile.
It is deceptively easy to criticise claimant lawyers for their costs. We are easy targets and there is always a case to be quoted where the costs appear eye-wateringly excessive. That isn’t the reality and doesn’t need to be the reality.
Put simply, experienced solicitors will not investigate and take on a claim when they cannot provide a professional service to their clients. We do not believe in cut price, half done legal action. Our clients are individuals who have been damaged through no fault of their own.
So if we do not deal who does?
All of this leads to claims being handled by those who do not know what they are doing or to patients making claims without legal help. Either way that increases costs to the defendants and doesn’t represent effective access to justice or any proper redress to injured patients, who are completely innocent and whose lives have often been devastated by errors in medical care.