Should cases cost be capped?

Last week the cost of medical negligence cases was highlighted in the news, which attracted a lot of discussion between the legal and the medical profession (especially on forums such as linkedin). Concerns are being raised not only in relation to the cost of medical negligence compensation but also the amount of legal costs involved. News articles are quoting that the costs to the NHS has nearly doubled since 2010 and that a cap should be introduced.

Shantala Carr, Clinical Negligence Associate Solicitors at Girlings Personal Injury Claims Solicitors, who acts for claimants, explores this further:

β€œThe purpose of compensation is to put injured patients in the position they would have been in had the negligence not occurred. This means they are compensated not only for their unnecessary pain and suffering but also for their losses which often includes the cost of treatment to make them better, aids and equipment to assist with their injuries, etc.

The focus should not be on capping this vital financial rehabilitation but on avoiding the injuries in the first place. I see the same mistakes occurring over and over again. One has to remember that the Bolam test only allows for a claim to be brought if there is no reasonable body of medical professionals in that discipline who would have acted in the same way. This test leads to only the most severe cases of poor care being taken on. One also has to remember that the proportionality principle now only allows cases of sufficient value to be taken forward. These restrictions are there, quite rightly, to protect the medical profession and ensure only a relatively small number of patients can take legal action. This means that, generally speaking, only cases where there has been serious negligence which has led to a fairly significant injury are taken on by solicitors. These are cases that should be fully compensated without a cap being introduced.

The NHS therefore needs to focus on improving the care and treatment received by patients and avoiding mistakes re-occurring. I’m sympathetic towards the pressures faced by medical professionals and that they are often short staffed and overworked, leading to human mistakes. The NHS needs to invest money in those areas and this, no doubt, would reduce the claims overall.

As for the legal costs, if defendants were to admit liability early on, there would be no need for drawn out legal costs. Unfortunately, even in the most straight forward cases, defendants often deny liability and proceedings have to be issued unnecessarily and costs accrued when eventually a settlement is agreed after all. I have tried several times to limit costs by giving defendants the opportunity to admit liability early when, for example, a root cause analysis has found a number of significant failings which are clearly negligent, but more often than not my attempts have been unsuccessful. The NHS could therefore save costs if they could extend their duty of candour to making early admissions in the legal process.

My view is that the real focus should be on investing in staff levels, training and the quality of care received by patients and looking at how vigorously cases are defended when there has been clear negligence.”