The NHS Litigation Authority published its annual report recently, and suggests 2 main reasons behind an 18% rise in clinical negligence claims. First they cite a surge in claims taken on in the lead up to the implementation of the LASPO legislation on 1st April 2013; second, they argue that almost half of the clinical claims they received had “no evidence of negligent care” and were speculative claims taken on by lawyers who were new to medical negligence litigation.
The effects of LASPO on compensation
Prior to 1st April 2013, claimants who brought a claim under a “no-win no-fee” agreement were able to keep 100% of their compensation, due to fees and premiums being recoverable from the Defendant. However, following a Government review of how legal cases were funded – such as through Legal Aid and legal expenses insurance – new legislation was introduced: the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (also known as LASPO). As a result, claimants are no longer able to recover all of their legal costs or legal expenses insurance from the opposing side.
Advertising ensued, encouraging people to make sure their claim was taken on before the deadline so that, if they were successful, they would be able to keep all of their compensation. Given that this took place in the full media glare of the Stafford inquiry – which revealed severe failings in NHS care – it was not surprising that there was a higher volume of claims at that time, nor unforeseen that a proportion of those would be speculative. This situation will balance itself out.
Non-specialists run up extra costs in Clinical Negligence claims
The issue of the quality of claims is a very important one, however. It has been reported elsewhere* that there is “…an ‘unprecedented’ level of new claims as personal injury solicitors branch out into clinical negligence”. The NHS LA report also talked about such claims attracting higher costs. These two points are the real issues behind the headlines.
Capacity to handle a claim with no money upfront
The effects of LASPO on the financial costs of handling Personal Injury claims (such as those arising from a road traffic accident, fall or accident at work) has meant that some firms have looked to offer other areas of litigation to their clients. However, medical negligence litigation is extremely complex. It takes time and expertise to build a strong case. Whilst a personal injury case may come to a conclusion in a matter of, say 6 months for example, a medical negligence claim can often take a number of years. This costs money.
Because we have specialised in medical negligence for over twenty years, our business is run in such a way that enables us to support this long-term approach. It also gives us the capacity to guarantee that we will not ask a claimant to pay a penny upfront, either to us or to anyone else.
Expert case assessment
A specialist approach to medical negligence litigation is crucial as it means we have the necessary experience and level of expertise to assess whether or not a claim is likely to succeed. Each of our five Partners is accredited under the Law Society’s Clinical Negligence Accreditation Scheme and all of our lawyers work exclusively for claimants. Consequently, if we take on a case, we are confident that it has a good chance of success. Because of this, we don’t run up unnecessary costs, something that a firm with less experience in this area may well do.
Medical negligence happens – but speculative claims are costly and unhelpful
It is quite clear that medical negligence happens – it has been acknowledged as a major concern by Government, healthcare professionals and patients alike. The NHS should be accountable, take responsibility and learn from its mistakes. But, it should not be seen as an ‘easy target’ for speculative claims as this takes the emphasis away from helping people deal with the consequences of genuine medical negligence.
If you or a loved one have suffered because of medical accident or negligent treatment, please call us on freephone 0808 115 6189 or email us to see if we can help. A selection of case studies of successful claims can be found here.
Posted 22nd July 2014 | Posted in News,Uncategorised