President's Letter (December 2008)

I think we all have our favourite lawyer jokes. At dinner parties guests all seem to have their own collection to entertain us with. There are those who believe we should follow a zero tolerance regime and reject all such humour as unfairly mocking our worth. On the contrary I think we must maintain our sense of humour. However I do think we must arm ourselves with facts that remind those same guests of what we actually do and how we provide an invaluable service. It is noteworthy that the humour or even abuse rarely comes from someone who has received the help of a solicitor.

So let us consider clinical negligence as just such an area where facts should reign over rumour. I choose this subject for two reasons. Firstly because it combines the myth of the compensation culture with the cost to the taxpayer and secondly because we can show how Wales leads the way in innovation. Recent Press coverage suggested that claimant lawyers’ costs in Clinical Negligence claims in England were out of control.

“The annual bill in England now tops £90m - a 122% increase in four years despite the number of cases remaining relatively stable. The NHS Litigation Authority blamed it on a rise in no win, no fee claims which had led to some solicitors doubling their rates to £600 an hour”

So what can we say? The Association of Personal Injury Lawyers helpfully pointed out that only a quarter of NHS claims are funded under no win no fee arrangements and:

  • the Claimant lawyers’ fees quoted include VAT, disbursements (many to medical experts!) and insurance premiums, so the NHS can get repaid in losing cases;
  • 41 per cent of claims are abandoned by claimants, so a high success fee is justified;
  • In legal aid cases, the basic hourly rate permitted if the claim does not succeed is only £79.50 plus VAT (sometimes enhancements will be added);
  • Recent figures show that only about 0.5 per cent of adverse incidents result in a claim.

Finally, remember that when it is still suggested that lawyers are to blame and a no fault scheme is the answer, the Government Chief Medical Officer’s report of 2001 stated that a no fault scheme would lead to an increase in claims and a £4 billion annual bill to the NHS (compared to £400 million in 2008).

So what about Wales? The School of Law at Swansea University has just completed an analysis of the Speedy Resolution Pilot Scheme and this has concluded that the scheme has been a success and should continue.

The Scheme was devised by the National Assembly for Wales. It is a joint expert, fixed timetable, fixed fee Scheme that is open to claimants alleging clinical negligence against Welsh NHS Trusts that are worth between £5,000 and £15,000. The aim of the Scheme was to achieve four basic policy objectives:

  • a reduction in the length of time taken to resolve clinical negligence claims that qualify for entry to the Scheme;
  • a reduction in the cost of settling such claims;
  • an improvement in “lessons learned” from individual cases; and
  • increased provision of explanations of treatment.

Supported by the Legal Services Commission this is a Welsh scheme that ought to be extended to England. It has just received the acclaim of Edwina Hart AM and Minister for Health and Social Services.

Conversely we await in the next two to three years the implementation of the NHS Redress Measure rejected in England but embraced by the WAG as its first Measure. The scheme is intended to be a quick non-litigation investigation and determination of liability. The Redress for low to modest value cases includes:

  1. the making of an offer of compensation in satisfaction of any right to bring civil proceedings in respect of the liability concerned;
  2. the giving of an explanation;
  3. the making of a written apology; and
  4. the giving of a report on the action which has been, or will be, taken to prevent similar cases arising;

In these ways, Wales and their solicitors hope to lead by example and demonstrate that the victims of clinical fault can receive proper remedies with minimal cost to the NHS. A result for all concerned and something else to wave at the other Dinner party guests! But if you just want to be popular and join in, then how about this one?

A new client had just come in to see a famous lawyer. “Can you tell me how much you charge?” said the client. “Of course”, the lawyer replied, “I charge £200 to answer three questions!” “Well that’s a bit steep, isn’t it?” “Yes it is”, said the lawyer, “And what’s your third question?”

Mark Harvey, CDLS President

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