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Clinical negligence, why sorry is the hardest word in these instances

Having specialised in medical and clinical negligence for several decades, Linder Myers has seen the NHS undergo considerable change none more so than in recent years with budget cuts and targets being introduced.

Sadly, in our experience, the quality of patient care is suffering as a result. As legal experts in this area, we see the worst examples of when significant life changing injuries are sustained often as a result of a delay or wrongful diagnosis, human error or poor communication.

Simple mistakes in this context however, can lead to not only the individual victim’s life being dramatically, and detrimentally, affected but also that of their wider family.

Dealing with hundreds of cases every year, a common recurring theme is that our clients simply want the medical experts involved to acknowledge the mistake and say sorry. A human response to what is often a tragic circumstance.

It is with this in mind that the recent move by the NHS Litigation Authority, which holds the clinical negligence compensation pot, to issue guidance to NHS Trusts in England and Wales advising them to apologise to patients when things go wrong is a welcome development.

Urging medical staff to make ‘meaningful apologies’, the Authority advises that patients in these circumstances should receive timely, transparent information and ongoing support from the appropriate medical staff following an incident.

Dealing with the most significant instances which include brain injury, wrongful amputation and delayed diagnosis resulting in serious and avoidable medical conditions or even death, receiving an apology is something that our clients often tell us is the most important thing to them.

While the NHS continues to experience significant scrutiny, the legal sector has also been subjected to unprecedented change with medical and clinical negligence arguably being one of the worst hit areas.

The removal of access to legal aid, except for a small number of specialist cases, from April 2013, alongside other major shifts which change the rules with regards to how much injured victims can receive in compensation, has dramatically changed the landscape.

While the original objective of the reforms was to reduce the number of smaller claims being pursued against the NHS, the reality is that ultimately, innocent victims will be the ones to suffer.

Some of these changes are out of our hands, for example, the defendants were previously, and rightly, responsible for paying most of the winning side’s costs. This is no longer the case and the introduction of some other elements of the recoverable costs now having to come out of the injured patient’s compensation is on us and will affect the compensation that many innocent victims need.

We are also seeing an increase in non-specialist lawyers taking on medical and clinical negligence claims to compensate for the drop in revenue in other income streams which is a big concern.

The likely result of this is unlikely to be positive for injured patients as it is a very complex area of law which not only requires specialist lawyers, but also specialist lawyers who have existing relationships with the right, proven medical experts who play a large part in verifying the evidence needed to secure the correct result and the appropriate level of compensation.

The result, unfortunately, is that legal specialists in this field have now been forced to cherry pick the claims most likely to win in order to justify the significant upfront costs, not least paying for the independent medical experts needed to investigate what actually happened. This has already started to take place which can mean some of the most vulnerable victims will have limited access to justice.

We have been working hard at Linder Myers to counter some of the reforms in order to find a solution to enable more victims of medical and clinical negligence to access legal recourse including working with third party providers of funding to help pay for the costs of pursuing such claims.

Ends

Find out more about our Medical Negligence department
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