The Centre for Policy studies, a centre right think tank set up by Mrs Thatcher, has published a report calling for tort reform to protect the NHS and the education system. It makes entertaining reading.
Firstly I must put my cards on the table. Whilst I abhor the Claims Management Companies that bombard your phone with spam texts and invade your living room with adverts encouraging you to sue for anything, I am a claimant medical negligence lawyer. I have been doing this since before the boom and hope to be doing it long after the boom in claims subsides.
The report from the CPS suggests that doctors practice defensive medicine. Whilst there may be some anecdotal evidence that this is happening the objective evidence is thin on the ground. Let us not forget that it was only after a significant number of high profile mistakes that surgeons agreed that X-rays needed labelling Right & Left. Hardly indicative of a defensive culture. If defensive medicine were being practice would we not see a fall in the number of claims? Defnsive medicine logiaccly cannot result in an increase in claims. That can only be achieved by an increase in accidents.
The reality is that whilst there is a perception of compensation culture the vast majority of avoidable accidents in NHS hospitals do not result in litigation. If you compare the NPSA data with the NHSLA data you can see that about a third of avoidable incidents resulting in death or injury lead to claims. If this is true of the accidents they admit to then the true number of potential claims is far larger yet the number of claims is not that large by comparison. Hardly consistent with the rhetoric of the CPS report.
It is true that costs got out of control. The last government refused to listen to the lawyers who said the no win no fee agreement was a bad idea. That has been addressed and to engage in anymore reform before LAPSO has time to bed in is foolish. Costs will come down. If you want to reduce claims forget defensive medicine – just practice good medicine. The test the court applies is that of a reaonable doctor – therefore when cases are settled it is because the expert instructed by the NHSLA has indicated the treatment was poor.
The CPS report states that the fact only 3.2% of cases go to trial or approval is an indicator of lawyer greed. No. It is an indicator fo the NHS having to concede that the care was not good enough and settling (at a reduced amount) without a more costly defeat at trial. Do not kid yourself that if the rest of the cases went to trial the damages would be lower. Chances are they would be higher and the costs higher still.
But surely “no fault compensation” is better. Indeed in an ideal world it is. However this is not new. If you think it is, ask yourself why the NHS Redress Act is on the statute books. It is because Mr Blair tried this route in response to Sir Liam Donaldson‘s suggestion of it. It was shelved “Why?” you ask. Well because the cost of implementing it and paying damages to everyone who is injured in the NHS care each year would eclipse the amounts paid in compensation and costs (even with the accursed success fees still there(. The simple truth is that lawyers can only settle cases that can win at court. That means we have evidence that the care was substandard and an injury was caused. If we do not have that it goes to trial and we lose. Removing the safe gaurd of the courts would open the NHS to an avalanche of damages payouts far bigger than it currently faces and at a cost it cannot meet. Like it or not, the current system is still cheaper than a “no fault compensation scheme”.
If the government wants to implement one, look back at the notes left by the last lot in power. I assume the figures have only increased since then. If it could not be afforded in a boom, it certainly cannot be afforded now. Remember whatever your personal view on compensation culture is, it is not backed up by the stats. Most accidents in NHS hospitals do not result in claims. If a no fault scheme was introduced they would all claim. Most are put off by the court process or are advised not to proceed. All of those cases would get something under the CPS idea. If they want to know how many potential claims are abandonded at the advice of specialist lawyers then they are free to call me and I will give them an idea of the scale of the possible number of claimants for their scheme.
Under Steve Walker the NHSLA seemed reluctant to try and learn from the data it produced. There are clear lessons within the claims brought by specialist firms. We find that the same mistakes are made too often. If we can see that then surely the NHSLA can see it and start preventing claims by preventing mistakes.
So less tired anti-lawyer rhetoric and more pro-active improvement in healthcare.
Just in case you are in any doubt, if the CPS gets it way, the people who suffer most will not be lawyers but will be the people injured. They are the people who have already lost out. Do not fall into the trap of thinking that it may not be you one or some one you care about that gets injured.