Caven blog

Medical negligence claims – what’s the future for injured claimants?

Claimants who have been injured by medical professionals are going to find it a lot harder to bring their claims against the negligent parties in the future thanks to two moves by the government aimed at cutting costs and reducing the budget deficit.

Medical negligence claims, also called clinical negligence claims, occur when a person is injured or caused to suffer because of the negligence of a medical professional. In order to be negligent, the medical professional must breach their duty of care towards the patient and cause the injury or harm suffered by the patient.

The NHS received 6,654 claims for clinical negligence in 2009/2010, and an addition4,074 personal injury claims for non-clinical incidents, such as slips, trips and falls.

Medical negligence claims against the NHS are dealt with by the NHS Litigation Authority. In 2009/2010 it paid out £787million in connection with medical negligence claims, £120million of which went on the legal costs bill.

The legal bill is so high because of the increase in use of conditional fee arrangements (also known as no-win, no-fee agreements). Conditional fee arrangements (CFAs) are cost agreements between solicitor and claimant that defer the payment of fees until the case is successfully won or settled. In addition to their regular hourly fees, solicitors charge a ‘success fee’ on top to compensate them for the risk they took in agreeing to pursue the case on a no-win, no-fee basis.

However, the claimant very rarely has to pay their solicitors fees, including the success fee, as these are usually paid by the unsuccessful side by order of the court.

The success fee is calculated as a percentage of the normal fees and can be charged at 100%, meaning the legal costs paid by the losing side, such as the NHS, can be huge.

In addition, many claimants take out after-the-event insurance to cover the legal costs of the defendants should they lose their claim. The premium for after-the-event insurance can be steep, and the NHS as a defendant has had to repay this premium if and when claimants are successful.

Lord Justice Jackson has recently issued a report recommending that claimants pay their own legal fees, including success fees and after-the-event insurance premiums, out of their awarded compensation. Lord Jackson made the recommendations as a response to the huge legal bill footed by public authorities, such as the NHS, and to the increasingly ‘spurious’ nature of personal injury litigation.

The recommendations may lead to fewer solicitors willing to offer CFAs, as their fees are less guaranteed to be paid, and will mean claimants will end up with less compensation for their injuries.

In addition, legal aid, which funded 1,822 settled medical negligence claims against the NHS in 2009/2010, will no longer be available for medical negligence claims under the government’s spending reforms. It will only be available for a very limited number of claims.

Therefore medical negligence claimants may find it increasingly difficult to find a lawyer to take on their claim, or indeed, may find less incentive to go after the compensation for their injury to which they are legally entitled.

Related Links:

Read more on the story (Guardian)
Read more on medical negligence claims (Caven)
Contact local medical negligence solicitors in your area (Caven)

One comment on “Medical negligence claims – what’s the future for injured claimants?

  1. Keep in mind that just because a doctor made a mistake or a patient was unhappy with a course of treatment or its outcome, that doesn’t mean malpractice necessarily occurred. In order to meet the legal definition of medical malpractice, the doctor or medical provider must have been negligent in some way meaning the doctor was not reasonably skillful or competent, and that incompetence harmed the patient.

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