First an attack on entitlement to Legal Aid. Then an attack on the ‘no win, no fee’ regime, meaning that people have to pay their own success fees. Now claimant’s are facing an attack on their compensation. The Medical Defence Union’s latest proposals seek to further restrict our right to access to justice in relation to medical negligence.
The MDU (Medical Defence Union) has launched a campaign for what it describes as “fairer compensation” in medical negligence litigation. The MDU provides insurance to doctors who work outside the NHS. They are asking for “your help in supporting our fair compensation campaign which aims to highlight the unsustainable increase in medical compensation payments and to ensure this important issue receives the attention it deserves.”
In the UK we have a legal system that provides a financial award to an individual who has sustained an injury, in an attempt to compensate them for the loss caused by that injury. This is known as compensatory damages. We also have what is known as punitive damages, which are rare in the UK especially in medical negligence cases. Punitive damages are awarded to deter a defendant from carrying out a similar act again. These are more common in the US and are often seen in product liability cases involving pharmaceutical companies.
Compensatory damages are split into General Damages and Special Damages. The former can be difficult to quantify and reflect the pain, suffering and loss of amenity suffered by an individual. Special damages are quantifiable financial losses that an individual has suffered (or is likely to suffer) as a result of an injury, such as loss of earnings, the cost of care and the cost of rehabilitation. This list is not exhaustive and in the majority of medical negligence cases I handle, special damages usually form the majority of the overall damages award eventually made.
So what then should we make of the MDU’s campaign? Their proposals include:
- reforming the law by which compensation is calculated to pay for private rather than NHS care
- Placing a cap on the level of damages awarded for future care
- Placing a cap on the amount claimants are allowed to recover in respect of loss of earnings
The campaign appears to be founded on a survey regarding medical litigation in which 2,070 members of the public, 220 doctors and 150 MPs were canvassed. According to the survey 88% of those responding were of the view that “future patients’ future care could be provided by the NHS, rather than privately, as happens under the current system.” This is quite a statement to make and I seriously doubt those responding understand how the current regime works. Adopting this approach (NHS rather than private care) is likely to add to the strain on an already creaking NHS, but more importantly, it is highly unlikely, in my experience, that the NHS or a local authority would be able to provide the amount of care and assistance needed. Why then, should a child who is injured at birth through negligence, who suffers a catastrophic brain injury and requires continuous 24 hour care for the remainder of their life, only be able to receive what the NHS and local authorities can offer, which is likely to be a lot less than what they actually need? I have represented many brain injured children who only achieve the standard of life that they deserve once a funded care plan has been put in place. That is primarily because the NHS and the local authority cannot provide the level of care and services required. This is by no means a reflection on the family caring for the patient but a mother/father cannot always fulfill that role if they are also a full time nursing carer. There is already a system in place for periodical payments to ensure that a patient’s care is paid annually until they die. This means the gross cost of a care claim could run into millions - however, if the claimant dies before they are expected to then the defendant pays a lot less.
What then of the proposal that the damages for this care should be capped? This can only mean that claimants would not receive the level of care they require. How is this fair if their injuries necessitating this care were caused through no fault of their own?
It is not only nursing care, there would be an overwhelming increase in physio, hydro, occupational and speech and lauguage therapy support, to name but a few, that the NHS would be required to provide.
Finally, why should an individual seek ongoing treatment from a clinician who may have caused him the injury in the first place? In my experience claimants resort to litigation in order to provide themselves with services that the NHS and local authorties cannot offer.
In the UK claimants are only entitled to recover what they have already lost, will lose or are likely to need in the future. This is closely controlled by the courts and the insurers of the NHS and GP’s. If these awards are increasing, it is not because spurious claims are being made - it’s because the costs of the services required by claimants is increasing. Lawyers do not have a financial interest in how much a claimant recives in damages and “no win, no fee” agreements can no longer be blamed as the cause of escalating premiums as clients now pay their lawyer’s success fee themselves rather than the defendant doing so.
It leaves the question which was asked at the outset, what is fairer compensation? The MDU’s proposals are not fair on the injured claimant, or the UK tax payer who will pay for NHS services that injured claimants are forced to seek. This proposal would mean patients injured by incompetent clinicians have their compensation slashed, just so those very same clinicians, who already receive a very healthy salary, ensure that their insurance premiums are kept down. Is that fair?
Oliver Thorne is a Clinical Negligence lawyer with Slee Blackwell Solicitors.