Hilary Meredith Solicitors’ Dianne Yates criticises “ridiculous” clinical negligence proposals by MPs

A committee of MPs has called for a complete overhaul of the way compensation is paid to NHS patients who have suffered harm.

The Health and Social Care Committee has called for the effective abandonment of adversarial clinical negligence litigation for most cases and the establishment of an independent administrative body to investigate cases and determine compensation.

The Committee has recommended a change in the law so that access to compensation is based on agreement that correct procedures were not followed and the system failed to perform, rather than having to meet the threshold of clinical negligence.

It also wants all compensation to be based on the costs necessary to top up care through the NHS, rather than the current assumption that care will be provided privately. They further advocate the scrapping of the expected future earnings link in claims for people under 18, a system that leads to ‘manifest unfairness’.

The recommendations would not necessarily prevent patients from litigating, but they would have to go through the new administrative body as a mandatory first port of call.

Responding to the recommendations, Dianne Yates, Director and clinical negligence specialist at Hilary Meredith Solicitors said:

“Removing the need to prove negligence is likely to have the opposite effect to that intended, namely reducing the costs incurred by the NHS in defending negligence claims. Simply put, the scheme is likely to open the floodgates to more claims, including unmeritorious claims that are currently screened out by lawyers and as a result increase the costs burden on the NHS.

“Additionally, any statutory scheme would undoubtedly impose limits on compensation, undermining the principle of full and fair compensation, and leading to injured victims of negligence being required to accept less than they are entitled to.

“The fact that costs are increasing due to the actions of claimant lawyers is and has been a fallacy for years. NHS Resolution claims data confirms that claimant legal costs have fallen by 13% since 2016/2017. The issue is not claimant lawyers but rather costs arising due to an apparent inbuilt inability or reluctance on the part of the NHS – and their lawyers – to learn from mistakes and admit fault.

“The focus of any reform should be to encourage the NHS to learn from its mistakes, develop a more open system of investigation, make swift admissions of fault, engage in greater collaboration with claimants and bring claims to a conclusion sooner rather than later.”

Concluded Dianne: “The proposal that those injured by negligent medical care, should then have to rely on those responsible for the negligence to provide further treatment is ridiculous.

“The NHS, after a decade of – some would say deliberate – under-funding is over-stretched and under-staffed with the result that NHS (and Social Services provision) is inadequate and inconsistent, making private provision essential in many cases. If the proposal is to allow defendants to buy care packages from the NHS, this will lead to a bidding war between insurers for the already limited NHS resources, and create a two-tier system impacting those who have suffered non-negligent injury. The historically high waiting lists will increase, care will worsen and negligence cases increase.

“A well-funded NHS, with a willingness to learn from mistakes and share information, would inevitably lead to increased patient safety and a reduction in clinical negligence cases. The Committee and Mr Hunt know this, but choose to ignore it.”