On Wednesday 16 August 2017 LBC (Leading Britain’s Conversation) news station reported a record rise in babies born with brain damage causing a huge cost to the NHS.
Originally reported by sky news, the article focused on compensation awards for parents of brain injured children as becoming “unsustainable” according to government officials.
NHS Resolution who handle complaints made against NHS Trusts also noted that the expenditure by the service is “dominated” by the “very high value of claims arising from brain injuries at birth”.
What was alarming was the quote according to NHS Resolution that compensation and the costs arising “will continue to increase for years, probably decades to come” – and these rises are going to be “unavoidable without significant law reform”. This is worrying because the focus is not being put on the NHS for the significant shortage of doctors available in this area of healthcare, but on the legal fees required to resolve the issues, arguably once it is already too late.
Lack of Expertise
The Guardian revealed in their article regarding the lack of expertise to support maternity units, the significant and concerning shortage of doctors that is leading to a failure in this area of the health service. The article stated that “Quality of care was hampered by a shortage of 25% to 30% of middle-grade maternity doctors, those who are halfway between being junior medics and consultants…that had produced ‘a rota gap problem nationally’ which forced consultants to work extra hours to plug the gaps.”
Critics of the legal profession question the costs involved in pursuing claims against Hospitals, but there are concerns that capping legal costs for clinical negligence would lead to a watering down of a specialist area of the law leading to under settled cases and a vulnerable section of society not receiving expert legal advice. Cases are worked out very carefully in order to compensate the injured victim for the losses and damage they have actually suffered.
Fixed Legal Costs?
A recent article in the Telegraph evidenced the concerns against fixing legal costs for cases below £25,000 as this would impact on cases regarding death of the elderly, new-borns and stillbirths – “where Britain’s record is among the worst in the developed world”. What the UK Government does not appreciate however is that every clinical negligence case is complex, based on a number of very different facts and situations and usually requires technical medical legal arguments in order to be successful. It is a very strict test in law and this protects the Defendant from unjustified claims.
Our Government is proposing to reduce the legal bill arising from clinical negligence cases. However, restricting legal costs will not improve patient safety, it merely brushes under the carpet the serious issues regarding substandard care and fails to deal with the real issue – that the quality of care and treatment in the NHS, for example in maternity units, needs to be addressed with increased funding for doctors, education, equipment and research in this area.
It may be argued that cost capping in clinical negligence could mean that this money could be re-distributed back to the system to improve services, but if clinical negligence occurs will the NHS readily admit their faults and compensate the individual in a timely manner with full disclosure? The concern runs deeper into this specialist area of law, as how many law firms with the knowledge to deal with cases regarding potential clinical negligence will be left to take on the serious matters involved in future cases if costs capping also quashes legal expertise?