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Personal injury lawyers call for a shake-up of ‘obstructive’ NHS

Health service runs up litigation costs by admitting negligence at the eleventh hour

26 August 2015

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A change of attitudes in the NHS would make life better for vulnerable patients, lead to major savings, and answer government concerns over the cost of compensation claims for the health service's medical blunders, according to the Association of Personal Injury Lawyers (APIL).

Responding to the Department of Health (DoH) pre-consultation 'Reducing legal costs in clinical negligence claims', issued this summer ahead of a formal consultation in the autumn, lawyers at APIL have argued that major savings could be made to the NHS if it were to cut out needless injuries and adopt a professional and efficient approach to dealing with claims when things do go wrong.

The response comes following comments from parliamentary under-secretary for the DoH, Ben Gummer, who had suggested that lawyers acting 'unscrupulously' were using patient claims to load grossly excessive costs onto the NHS and charge far more than the patient receives in compensation.

Commenting in the aftermath of those incendiary statements, APIL's chief executive, Deborah Evans, said any scheme should be properly piloted and be optional, to allow patients a choice of how to proceed.

Now speaking in response to a government consultation on the restriction of costs, APIL's vice-president, Neil Sugarman, has said: 'Lawyers who act for injured patients have had to adapt to deal with recent legal reform. By comparison, the NHS approach to litigation is often ponderous, obstructive and wasteful.'

In its formal response to the government consultation, APIL have argued that fixed fees should only be applied when the NHS Litigation Authority (NHSLA) admits the NHS caused the injury, as this would act as an incentive to settle claims quickly.

'The main problem here is that the NHS has all the facts of the case at its fingertips but often fails to admit it is liable for the injury,' explained Sugarman. 'So the injured person spends years trying to prove there was negligence, running up costs all the time, only for liability finally to be admitted at the eleventh hour.

'It is a response born of an overly defensive attitude which is both old-fashioned and inefficient. What we need is a much quicker, fairer approach, and one which encourages the NHS to learn from its mistakes so the same injuries do not keep on recurring.'

Earlier this week, law firm Hodge Jones & Allen (HJA) launched a new campaign against the cost capping proposals. Writing to Gummer, HJA partner Nina Ali said the imposition of fixed costs would amount to an 'insidious erosion of justice', which would lead to decreasing accountability of the medical profession.

Ali also highlighted the fact that, since the introduction of the Jackson reforms, lawyers' fees have already become tightly controlled.


John van der Luit-Drummond is deputy editor for Solicitors Journal | @JvdLD

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Clinical negligence