Healthy claims?
Wednesday 27th July 2011
One of the favourite media labels attached to lawyers is ‘ambulance chaser’. It’s no surprise this term originated in the United States, where lawyers do exactly that, namely approach potential claimants in their hospital beds to encourage them to bring claims, sometimes against third parties and even against their own doctors. In the US, where juries award damages and decide liability, some medical specialities have become virtually uninsurable.
In the UK, the cost of claims to the NHS is enormous. In 2010, for example, the NHS paid out £650 million in claims, of which 20% represented legal costs (the costs figure was actually down on the previous year). The overall provision for claims is now £15 billion, and the number has risen almost 20% in five years. As a proportion of damages recovered, costs have actually reduced, but the figures are still big.
It is a quite cheap jibe to blame the lawyers for what is often portrayed as a symptom of the litigation culture. The reality is not so clear cut. First, people these days are much more aware of their individual rights to pursue a claim if their medical treatment has gone wrong; they don’t need lawyers to tell them.
Secondly, medical claims can be hugely expensive and unless they are quite wealthy most people can only pursue them with the benefit of legal aid. This is only available from relatively few firms which have specialist approval from the Legal Services Commission. The screening of potential claims is therefore quite vigorous.
A recent review of the funding of claims, including medical negligence claims, is likely to further restrict public money for patients wishing to claim. The result may be that it becomes more difficult to pursue technically more complex cases, leaving possibly severely injured patients with no recourse to the law.
This is against a background of cases such as the on going enquiry into Staffordshire Hospital, where it has been suggested that the health system had completely failed and the review into the use of out-of-hours doctors services, which arose from a number of what were considered to be preventable deaths. It has also recently been revealed that over 200 NHS trusts have failed to comply with orders from the National Patient Safety Agency, often citing staffing difficulties as the reason.
The problem with any sort of negligence claim is that those on the outside, particularly the media, can all too easily demonise a claimant as someone who is just after the money. This ignores the often terrible long term consequences for the patient of preventable mistakes.
The exception to this attitude comes when those who generally criticise have a claim of their own. At that point the claim, of course, becomes wholly genuine and justified. Those who point a finger at claimants and their lawyers should remember this simple point: there may come a time when it is they who are making the claim.