Skip to content

25 February 2016

Let’s play: “Fact or Fiction?” The Clinical Negligence edition, Part 1

5 mins

Clinical Negligence law is a complicated area so I want to take some time to dispel a few very common myths surrounding clinical negligence cases.

  1. “Britain is in the grip of a compensation culture and we’re suing more than ever” 

    FICTION – the NHS is doing more work than ever but the proportion of clinical negligence claims actually remains the same.  The 2015 NHS Litigation Authority report noted a 26% increase in “NHS activity” compared to last year, which was measured by Finished Consultant Episodes. The statistics show that there was a whopping total of just under 15.5 million hospital admissions in 2014-2015 which is 32% more than a decade earlier where there were 11.7 million patients. Also, in 2013/2014 there were 64% more operations completed by the NHS compared to 2003-2004.This means that although there are more potentially negligent incidents, the same proportion of clinical negligence claims are pursued – the ratio of claims to incidents being 0.007% of all NHS activity in 2006/2007 and in 2014-2015.The statistics provided by the NHS prove that there are more patients now but the same proportion of claims against the NHS.  We definitely aren’t suing more than ever!  

  2. “Claimants get paid millions of pounds” 

FACT – BUT only in very rare circumstances where the injuries are catastrophically severe. 

A case that illustrates this was settled by our Siobhan Kelly. The case of C (A Child Proceeding By His Mother and Litigation Friend) v Basildon & Thurrock University Hospitals NHS Foundation Trust was a tragic case involving an injury at birth where C, a baby, suffered catastrophic injuries because of the mismanagement by the staff at Basildon Hospital.

The little boy suffers from cerebral palsy and severe learning and behavioural disabilities because of the mistakes made. He will be dependent on others for the rest of his life and requires constant care. He needs two carers during the day. He is only able to use his left side and he drags his right arm and leg when walking and running. His right leg is shorter than his left. His cognitive ability is within the extremely low range of intellectual functioning and his overall thinking is better than only 1% of children his own age. He will never be able to work.

The tragic circumstances meant that without the negligent mistreatment, he would have been a healthy little boy. His very profound disabilities mean that he requires a lot of full-time care, therapies, accommodation and an income for the rest of his life.

The solicitors for both sides met in 2010 to agree an award of approximately £2 million and then annual payments just under £100,000, which would be paid for the rest of his life. If he lives to the expected age of 88, the settlement value is about £6.5 million. So yes, here is an example of a case potentially worth over £6 million but every penny of that was accounted for and is to pay for something that he needs. It’s also only £6.5 million if he lives to the estimated life expectancy. If the little boy’s life were to end sooner, the annual payments would obviously stop.

It is simply a complete fallacy that someone can have a “minor” accident, sue and be paid millions.  

  • “No win no fee agreements means compensation culture is through the roof!”

    FICTION – there are strict requirements to take a case on under a “no win no fee agreement”

    I’m always surprised by the number of people who don’t know this but “a no win no fee” agreement means that if the case is lost – the lawyer doesn’t get paid a penny. Now this is important – we don’t get paid a single penny for unsuccessful cases. The aim is to prevent lawyers from taking on any old case, and rightly so. Where’s the incentive to work for 2-3 years on a case if you already know from the outset that there hasn’t been any negligence? It would just be foolish and really, it just doesn’t happen.

    In our department, we have a rigorous risk assessment procedure in place for each and every case that is taken on. This looks at the likely chances of success of the case, the potential problems with liability, the potential problems with causation, the likely compensation level, our estimated costs and how long it will take for the case to conclude. A lot of work is carried out even before a case is taken on and there are a lot of hurdles to jump through before a “no win no fee” agreement can be signed. In reality, we probably take on just 1 in 15 new enquiries that we receive.

    There has been an increase in the number of “no win no fee” agreements but this was inevitable after Legal Aid was abolished for virtually all personal injury claims in 1999 and for all clinical negligence claims, except for children who have suffered very serious injuries at birth, in 2013. The media repeatedly refer to a rise in compensation culture but the facts really do suggest otherwise.

    For example, statistics from the Compensation Recovery Unit (CRU) show that workplace claims have halved in the last 10 years; a decrease from 183,342 claims in 2002-2003 to 91,115 in 2012-2013. We probably need more concrete figures about the numbers of cases taken on and lost rather than anecdotal headlines lambasting victims or patients who are injured at the hands of others. Surely the figures for successful cases taken on where liability is agreed, i.e. where the defendant accepts they were negligent, are not helpful because they just perpetuate the stigma surrounding those genuine cases, which are very much the majority

How can we help you?

We are here to help. If you have any questions for us, please get in touch below.