Thursday, 14 June 2012

Legal highs

I just caught up with an article published last week spotlighting the rising cost of compensation paid to NHS patients whose illnesses were misdiagnosed, from £56m in the previous year to £98m. 

A Department of Health spokesman was quoted as saying: "Unsafe care will not be tolerated in a modern NHS. The vast majority of the millions of people seen by the NHS every year do get good quality, safe and effective care. However, if patients do not receive the treatment they should and mistakes are made, it is right that they are entitled to seek compensation.” 

Wow. Are you sure about that? 

It’s a reminder that the annual report of the NHS Litigation Authority is due soon. It will be interesting to see what Kenneth Clarke has to say about it. 

Some will no doubt remember the minister’s breathtaking ‘double-counting’ gaff last March when he announced on the Today programme that “In 2008-2009 the National Health Service did pay out £312 million worth of damages. It paid far more out to lawyers in fees - £456 million.” 

Of course it transpired that £456m was the total expense, £312m of which was compensation and the rest costs, including £40m paid to defence lawyers employed to try and escape responsibility for the cock-ups. 

The disparity between costs incurred by claimant lawyers and NHS lawyers is now perennially blamed on success fees. Too little attention is paid perhaps to the cost for claimants of expert evidence (which the NHS has in-house) and the ease with which defence lawyers paid at reduced rates for guaranteed flow of work may do nothing but delay to ‘earn’ their fees. 

One expects Mr Clarke to blame the expense of clinical negligence – which rose to £863m last year – on “compensation culture” and “fat cat lawyers”. 

Within last year’s total, in excess of £600m was paid in compensation – not costs. In a no win, no fee environment, costs only have to be paid in successful cases – those claims by people who deserve to be compensated, but had to fight (with professional help) to get it. 

This is not an expense generated by lawyers, claims farmers or greedy claimants, Mr Clarke. 

This is the cost of incompetence, Mr Clarke. 

So what’s your answer? 

Improve the service? Learn from the mistakes? Arrest the needless wreckage of lives and lost opportunities to stay alive? 


Your answer is to kneecap the claimant lawyers – stop them exposing the shortcomings. We’re not just tiresome – we also cost money when we succeed. 

Who allowed that? Well, it was Parliament that makes the law and the courts that uphold it. 

Why did Parliament make that law? That would be to relieve the taxpayer of the perceived burden of legal aid for injured people to pursue redress to which our society’s law deems them entitled. 

Mr Clarke’s response to all this is not to solve the root cause (wastage, mismanagement, incompetence etc in the Health Service) but to stop the infringement of legal rights being exposed. Cover it up. Warp the stats. 

Injured innocents can go without a remedy. Many more can fall victim as standards of essential healthcare decline still further. 

Don’t (or didn’t - when we could afford it) we spend billions valiantly (sic) crusading against regimes that deny their citizens justice whilst using the wealth and influence of the state to wage war on the more powerful and influential opponents of tyranny and champions of what is true and just? 

What sort of regime do we now have here?

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