Medical negligence Solicitor, Mike Clarke, explodes the myth that a claimant should never accept the first offer in a medical negligence claim
Here is an old chestnut that medical negligence solicitors hear a lot from their clients:
“Yes, I know the NHS’s compensation offer is roughly in line with what you said I’d get, but my mate in the pub says you should never accept the first offer they make.”
Occasionally, the client will go one step further:
“…in fact my mate tells me the NHS always make 3 offers.”
Like many old chestnuts, the first statement does have a grain of truth in it, but only a grain. The second statement is completely wrong.
In the UK, the vast majority of medical negligence claims settle by negotiation where the claim has reasonable merits. It does sometimes feel like it takes forever; and despite making some headway over the years with the NHS being more open and amenable to negotiating in medical negligence claims, there is still a perception that the vast lumbering organisation is more concerned to avoid any kind of concession at all, rather than taking a pragmatic approach to compensation claims.
Having said that, there is no doubt that when compared with other types of injury cases, medical negligence claims can present greater scope for dispute, argument and flat-out denial. Occasionally, when the NHS and its lawyers do make an offer, the claimant is so exhausted with the whole process and so on edge about the risks of losing completely, that he will jump at it, even if he is advised that the offer is not a reasonable one.
The public perception still seems to be that the NHS intentionally
(b) make ridiculously low offers;
(c) want to hold onto their money as long as they can.
Of these, (a) is probably the result of many factors, including workload, bureaucracy, and the sheer time it takes to investigate the medical background to such claims. (b) does indeed happen, but not as often as the public might think; (c) is only true insofar as a Healthcare Trust is like any other business- it doesn’t want to pay money unless it has to. It’s also very budget dependent.
But any Trust that wants to survive in these days of huge financial pressure on medical services ought to respond to any claim with only two crucial questions:-
- Is it likely that they are going to have to pay compensation on the claim?
- If yes, then how much?
What any sensible defendant will then do is gather what evidence it can to evaluate a the likely compensation, then make an offer to reflect the risks of the claim.
There is no such thing as a risk-free claim, even if some liability is admitted by the medical profession. This is perhaps particularly true of medical negligence cases, where there is always scope for dispute about the degree and, above all, the cause of injury, as well as the effect of the claimant’s previous medical history. The law in medical negligence cases is not as straightforward as in other areas of injury law. It is quite possible to have sub-standard medical care, yet struggle to find evidence of any causal injury or damage linked to it. All those factors will have a bearing on how the defendant assesses the likely amount of compensation they will have to pay, and they will pitch their offer, or offers, accordingly.
True, sometimes defendants will try it on and make a ridiculously low offer, especially if they have the impression that the claimant’s solicitor is not very experienced or the client is desperate for the money- or indeed if the evidence is so disputed and there is a significant risk that the claim might fail completely. But it is dangerous to think that any opening offer should always be rejected out of hand simply because it is a ‘first offer’. Sometimes the Defendant’s first offer is also their last. And it’s simply wrong to think that a defendant will always make 3 offers, each one better than the last. There is absolutely no justification for that mistaken belief.
If the parties’ solicitors know what they are doing, they should both be evaluating the claim in roughly the same way; even disputed points and areas of risk are likely to be common ground to some extent. No matter what both lawyers might say to each other, they should know privately the realistic range within which the compensation could fall.
The lawyers will be acutely aware that an offer made under the provisions of CPR part 36 of the court rules comes with significant costs risks. In simple terms, if a party rejects a part 36 offer, but then fails to do significantly better than that offer in court, they can be heavily penalised in legal costs. Settlement offers therefore have to be considered with the utmost care. That is one good reason for having a solicitor deal with the claim in the first place – to avoid emotional weighting when looking at risks and likely outcomes and to advise the client on the pro’s and con’s of any given situation. This is particularly true in medical negligence cases, which all too often involve high levels of personal anguish or very strong feelings of victimisation on the part of the claimant.
If the first offer that comes your way is at or around the figure your lawyer has valued the claim at, then don’t think that if you play tough you will automatically get the defendant to increase it; They very well might not. They should have a good idea of the true value of the claim and they may get it right first time. It could be their first offer; and their last.
And remember, offers can be withdrawn. If you reject an offer that was in fact perfectly reasonable, you might find it is taken off the table completely – leaving you in a very tricky situation.
So, anyone who tells you that you should never accept the first offer or that there will always be 3 offers, is giving you poor advice. Every offer that is made needs to be individually considered by a specialist medical negligence solicitor who is experienced in valuing medical claims and the risks they bring, and who can guide you on the likely level of compensation available.
For a FREE case assessment of your medical negligence claim give us a call on our Freephone number 0800 975 8091 or email us now.