News

"Is There a Compensation Culture"?

The National Health Service Litigation Authority, the body responsible for the management of the vast majority of legal claims against NHS Hospitals, has issued its Report and Accounts for 2010 – 2011. The NHSLA is a public body which is accountable to the Secretary of State for Health. The report states that a total of 12,142 new clinical and non-clinical claims were recorded in 2011. The Authority reports an increase of new clinical claims compared to the previous year of 31.6% and an increase of non-clinical claims of 7.8% compared to the previous year. In each of the new cases a Letter of Claim was sent to the NHSLA. There are protocols which form part of the Civil Procedure Rules which are the rules and procedures governing Court Practice throughout the UK. The Protocol for the Resolution of Clinical Disputes sets out a procedure whereby a Claimant injured by clinical negligence can write to the Hospital concerned and the NHSLA describing the injuries which have been suffered and setting out the allegations of negligence which The Claimant maintains has caused his or her injuries. Once a Letter of Claim has been served, under the Protocol the Trust or the NHSLA has a period of 4 months in which to investigate the claim and serve a formal Response to the claim. The NHSLA at that stage may indicate an intention to settle the claim or alternatively negligence may be denied and the Claimant may be put on notice that the NHSLA will defend the claim if proceedings are issued in Court.

The good news from the NHSLA’s report is that there has been a reduction in the time to resolution of a claim being dealt with by the NHSLA. I suspect that the reason for this is the successful operation of the Protocols resulting in early investigation and (settlement or discontinuance) of legal claims without the parties having to resort to formal Court proceedings. The NHSLA say that only 4% of cases notified to them will ultimately result in Court proceedings. Another indicator of the Protocols’ success is that costly Court cases are being avoided.

The NHSLA’s report confirms that in the period 2010/2011 damages were paid out by the NHSLA in 5,398 clinical negligence cases. It would be interesting to know the number of cases which were successfully defended by the NHSLA.

The jurisdiction of the NHSLA is England and Wales which has a combined population of about 54 million. Using the NHSLA’s figures of 5,398 successful claims, about one person in every 10,000 of the population in England and Wales received a pay out from the NHSLA in 2010/11; a surprisingly low number. Perhaps the “compensation culture” is a myth after all.

Sarah Newcombe - September 2011
Senior Clinical Negligence Solicitor

Sea Changes Ahead

the ‘compensation culture’, cuts and government plans

You may not know it as it is not high on the public agenda, but there are plans to dramatically change the way in which compensation claims are pursued.

The government commissioned a report from Lord Young as to what is perceived as the "compensation culture" shortly after the last election. The previous government had commissioned a report from Lord Jackson in relation to the funding of claims. The present government is considering the extent to which the "Jackson Report" should be implemented. If one takes a cynical view, the overall aim is to reduce cost. Attacking the compensation culture makes it more likely that people will not pursue claims to which they are rightly entitled even though we are of the opinion that the so called "compensation culture" is a tabloid myth. Statistics back this up in our view.

Adopting a degree of cynicism, it is likely that local authorities will have to make drastic cuts over the next few years and NHS funding may be squeezed. Inevitably, if Councils and Health Authorities are squeezed, short cuts may be taken. This may mean that inspections of pavements are less frequent giving rise to increased risk of injury. Attacking the compensation culture and the means of funding claims may be one way to reduce public expenditure but inevitably at the expense of the victims who may not be compensated. At the present moment, most cases are funded by Conditional Fee Agreements (otherwise known as "no win, no fee" arrangements). Under such an agreement, a lawyer claims a success fee in a successful case and the success fee is payable by the opponent. This reflects the fact that lawyers are taking on cases for which they will not be paid if the claims are unsuccessful.

Success fees would be capable of being claimed from the successful claimant who might lose a proportion of his or her compensation payment. As a professional service provider, it is fair to say that over the past 15 years we have had to adapt to an enormous number of changes to the way in which cases are funded. The present system allows for access to justice and it promotes a culture whereby lawyers take on cases with reasonable prospects of success and not cases in which there is no realistic prospect of the claim succeeding.

The Jackson Report envisages a situation in which an insurance company, even if it successfully defends a case will not be able to recover its legal costs. Even the insurance industry fear that this could lead to an increase in claims with no merit (because the claimant will have nothing to lose). Our function is more than simply to recover compensation. Last year saw the lowest number of fatal accidents recorded. The work we perform also helps promote safe working practices and environments.

Marc Folgate - March 2011
Practice Director and Senior Personal Injury Solicitor

The Scaphoid Bone

possibly the most litigated bone in the world

The scaphoid is said to be the most commonly fractured bone in the wrist. Fractures of this bone often occur classically as a result of a trip, slip or fall. It is human instinct to attempt to break a fall and in doing so these fractures can be caused. One of the problems with the scaphoid is that diagnosis is not straightforward. Generally speaking diagnosis will take place by X-Ray examination. Sometimes a fracture may be hairline and difficult to detect. MRI Scans and CT scans can also be used to diagnose whether a scaphoid bone has been fractured.

The treatment of a scaphoid fracture can vary according to the nature of and position of the fracture. In some cases casting may be appropriate and in others surgery might be required.

A fracture of a scaphoid produces symptoms of pain near to the base of the thumb and swelling. The complications of an undiagnosed scaphoid fracture (or a fracture diagnosed too late) can be severe. It is possible that the difficulties in diagnosing it and the consequences of failing to do so have resulted in the reputation of this bone as a source of litigation. Our best advice - If you’ve suffered a wrist injury then seek medical advice promptly!

Marc Folgate - March 2011
Practice Director and Senior Personal Injury Solicitor