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Civil Litigation Section

Clinical negligence sector in grave danger

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Claimant lawyers returning from summer holidays this week may need to think about taking another one.

While the discount rate announcement, and the unrestrained glee of the insurance industry, is one source of dismay, an even greater threat now lurks.

Many claimant lawyers working in clinical negligence were hopeful of a sea change prompted by the National Audit Office’s investigation into the monstrous costs of claims to the NHS. Here, finally, was a chance to expose the perceived lethargy and obstinacy of defendants and insurers which drive costs and prolong the agony of victims.

Well, they got their sea change. Only the tide appears to have switched firmly in their direction and threatens to sweep them out to face a nasty current.

The NAO produced a 60-page report in the end but it came down to two conclusions: there are too many claims and the costs involved in them are too high.

The three biggest factors influencing costs were identified as developments in the legal market, the increasing level of damages for high-value claims, and changes in the discount rate.

Were you hoping to see defendants blamed in some significant way? Fat chance: the report states that some of the biggest factors reside ‘within the remit of more than one government department or are largely outside of the health system’s control’. It must be some other health system making these errors that lead to so many claims against it.

One of the three identified factors was addressed, coincidentally, within seven hours of the report’s publication with the discount rate reforms. Now ministers may turn their attention to the other factors.

The NAO is clear that tinkering at the edges is not enough: fixed costs legislation might save £90m a year by 2021, but by then spending will be up from £1.6bn to £3.2bn.

The prescription? Fundamental change, working across departments, with a ‘coordinated strategy’ by September 2018 assessing the number of claims, legal costs and – yes – the level of damages.

The left-wing commentator Polly Toynbee, not a natural bedfellow of insurance lobbyists, writes in the Guardian today: ‘Citizens need to ask themselves if they want ever larger sums of money drained from services to go to a few claimants who can prove their case, while a great many lawyers make more than the value of the original claims.’ A solution, she suggests, is applying Crown immunity to the NHS. 

Make no mistake, the narrative is changing. These might seem pie-in-the-sky ideas but they are being aired and talked about seriously. The outlook for clinical negligence claims themselves looks ever more uncertain.

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