How Do Medical Negligence Claims Work?
Posted on 27th March 2020
Medical Negligence claims, a strange system criticised from the wrong place?
A recent government statement has hinted once again at changes in the Medical Negligence sector. The changes are, of course, planned for the Claimant’s side of things, with more plans afoot to again attempt to formulate a ‘fixed costs’ scale for Claimant’s personal injury solicitor’s legal fees, particularly for Medical Negligence claims valued at less than £25,000.00. MG Legal, your medical negligence solicitor Lancaster, have been following these developments closely to ensure we are able to continue to do our best for our clients.
How does the current system work?
At the moment, Medical Negligence cases are not subject to Fixed Costs, which is how costs in most run-of-the-mill Personal Injury Claims (Road Traffic Accidents, Accidents at Work, Public Liability claims) are paid. Currently, if you succeed in a Medical Negligence claim, your legal fees are paid based on a Schedule of Costs, which your solicitor will produce based on the number of hours worked on the file.
What is being proposed?
A new, fixed cost, regime for Medical Negligence claims valued at £25,000.00 or less. This would likely be of higher fixed sums compared to other types of claim, but would still probably be less than solicitors recover currently.
Why is it being proposed?
Due to most Medical Negligence claims being made against the NHS, it is the NHS, or really the government, who must foot the bill for this. The existence of Qualified One-way Costs Shifting (QOCS) means that even if the claim is successfully Defended, the NHS does not get to bill the Claimant for their costs. However a claim ends, the NHS and by extension, the government do not recoup any costs from anyone.
Why does this criticism not make sense?
The biggest argument against this criticism and the fixed costs plans is that the added strain on the NHS since massive budget cuts began ten years ago has given rise to under-staffing, additional strain on the healthcare system and thus, a greater chance of negligence occurring. As with any workplace, as less people to do more work, there is likely to be a drop in standards. Doctors do not set out to make mistakes, but this is the type of environment that causes these, often inadvertent, errors. MG Legal, your medical negligence solicitor Lancaster, do not set out to demonise doctors, nurse or other NHS staff, especially in the current situation and we simply want to assist our clients, who have been injured as a result of negligence, obtain an award and treatment that properly compensates them for their injuries and losses.
Another criticism is that, whereas Claimant solicitors act on a Conditional Fee Agreement (no win, no fee agreement) which means that they do not get paid if the claim does not win, the firms used by the NHS are paid regardless of the result. This was pointed out by Lord Storey in the House of Lords, as a “perverse incentive that rewards “deny, defend, delay” tactics by lawyers” as they know they will be paid, regardless of the outcome of their case. Quite simply, if the claim is successful it is likely to be at a much later stage, where costs are much greater and where there is a type of no-win “double-jeopardy” for the NHS in that they either lose once, or lose twice.
What is likely to happen?
In the shorter term, nothing, as there has yet to be any kind of consensus on what scale the Fixed Costs would be paid. At no point has this appeared close and so, short of a concerted effort to push a version through, aided by a capitulation by those with opposing or differing views, the situation will remain as it is for a while yet.
Even in the longer term, there will always be solicitors who value their clients, like MG Legal, your medical negligence solicitor Lancaster. None of the dramatic cuts in costs over the past decade has prevented us continuing to offer our services to the people of Lancaster, Garstang, Longridge, Preston and to many more clients further afield.
How do I make a claim for Medical Negligence?
Contact MG Legal, your clinical negligence solicitor Lancaster and speak to our dedicated Personal Injury team. We will discuss your case in a professional but personable manner, as we appreciate these types of case can be exceedingly personal. Our usual method of working is to obtain a Claim Form and Medical Records Authority from you, to obtain and review your notes and return to you with an advice on your claim. This work is carried out free of charge and with a view to accepting instruction on the basis of a Conditional Fee Agreement (no win, no fee agreement).
Once we are satisfied there is a case for negligence, we will progress your claim, write to the fault party, whether an NHS Trust, private healthcare provider, GP’s surgery or individual private practitioner and press for an admission of liability. This process also involves obtaining expert medical evidence, which you will, of course, also have the chance to view.
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