Medical Negligence Solicitors
Are ‘No Win No Fee’ Medical Negligence Solicitors Harming The NHS?
The introduction of ‘no win no fee’ was designed to ensure that once the Legal Aid system had finished, those on low incomes or without the funding to afford their own solicitor still had the opportunity to make a successful claim through the courts. In the past few years no win no fee cases have become what many consider to be a drain on NHS resources, and the legal fees charged by solicitors has come in for the greatest criticism.
Average charges by solicitors taking on no win no fee cases is around £65 an hour, but a successful case can mean a ‘fees bonanza’ from NHS funds, enabling a solicitor to bill the NHS at a rate of nearly £400 an hour. The top fees payable to a no win no fee NHS Medical Negligence Solicitor can be over £800 an hour. The legal costs are often far higher than the actual compensation amount paid out to the claimant, and it is this drain on resources that critics claim is unacceptable.
The NHS Litigation Authority (NHSLA) says that the fees for solicitorsare out of proportion to the amount of risk taken on in pursuing medical negligence claims, and accuses the legal profession of ‘cherry-picking’ cases that they feel will produce huge rewards for little risk. The specialist medical negligence claims solicitors counter these sentiments, explaining that far from being low risk most medical negligence claims are complex and require a lot of work at the beginning of the claim when the solicitor does not know whether they will be paid. They also accuse the NHSLA at being slow to settle cases, even those that give clear evidence of being bone fide medical negligence claims, and that a greater willingness to settle cases quickly would lead to lower legal costs.
The NHSLA is worried. Under its main scheme, the clinical negligence scheme for trusts, around 50p in every pound is already spent on legal costs. The Authority paid out damages of £264million in 2007-08. Legal costs for the defence team and claimants amounted to around £134million. Whichever way you do the maths, that’s money that could be better spent on more settlements which could be dealt with far more quickly, say the claims specialist solicitors.
However, claims lawyers don’t believe that medical negligence claims are just about the money. They also say that there is a matter of principle involved as well in bringing justifiable claims against NHS trusts. Not only do the cases compensate those who have been failed by the system; they also highlight shortcomings in the organisation as well. By throwing a spotlight onto the trusts, they believe that other patients can be spared the suffering that a breakdown in the system can cause. Unless cases are highlighted, the weak spot in the system, be that in the cleanliness of wards or adequate staffing levels, cannot be identified and fixed. In the long run this will actually save the NHSLA money. As improvements are made as a result of successful claims, fewer future cases will be forced through the legal system. The end result is a better NHS for everyone.
The bottom line in this perpetual argument is that the onus is really on the NHS to provide a level of care that negates the need for the huge number of medical negligence cases brought every year. And in cases where there are grounds for litigation, a quicker response by the NHSLA would result in lower legal fees. If a claim highlights negligence, paying up sooner rather than later would prevent the costs from mounting up and also give claimants the reassurance that the Trusts are not trying to ‘cover up’ their shortcomings in a tangle of legal red tape.
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