clinical negligence

Should we sue doctors? Law Pod UK latest episode

20 January 2020 by Rosalind English

The BBC today published a report following a Freedom of Information request that the NHS “faces paying out £4.3 billion in legal fees to settle outstanding claims in clinical negligence. Read the report here. The vast inflation in damages awards in clinical negligence claims means that the cost to the health services is producing great concern in those who have to address the financial future of the NHS. This is particularly an issue with birth disasters where the life expectancy of the child, however badly damaged, is lengthy and therefore ongoing costs, notably care costs, stretch long into the future.
In May 2019, former Court of Appeal judge Rupert Jackson proposed a series of solutions to this problem, including replacing the principle of full compensation with a system of tariffs . This may be along the lines of the current scheme operated by the Criminal Injury Compensation Authority . He also called for a new test for liability, which would ask whether the patient had suffered ‘reasonably avoidable injury’. You can read Sir Rupert Jackson’s full paper here:

Medical errors: Sanctions and compensation – is there another way? 

In this episode I’ve brought together two members of 1 Crown Office Row who have spent their professional lives both claiming against and defending the NHS. James Badenoch QC, now retired, maintains that the existence of these claims is justified by the pressure to improve clinical practice.

David Hart QC provides us with the details of the very considerable figures paid out recently by the NHS in settlements and awards. The source of these figures and others can be found here:

NHS Resolution Annual Report and Accounts 2018-2019

So what are the solutions – or what, some might say, are the threats – to the principle of full compensation in the medical context? Do listen to this discussion between two experts in the field.

• Doctor knows best?
• Scope of Duty and Causation – Chester and Afshar Revisited Part 1
• Scope of Duty and Causation – Chester and Afshar Revisited Part 2
• Disaster Avoidance for Experts

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Consultation again – this time for dentists

19 December 2014 by David Hart QC

British Dental Association v. General Dental Council [2014] UK EWHC 4311 (Admin) 56, Cranston J, 18 December 2014 – read judgment UPDATED

Philip Havers QC and Jeremy Hyam of 1COR were for the successful Claimants in this case. They had no part in the writing of this post.

The Supreme Court has very recently reviewed the law on consultation and unlawfulness in the Moseley case (read judgment, and my post here). The present case is a good illustration of those principles in practice.

Dentists have to be registered with the General Dental Council. The GDC regulate them and may bring proceedings against them if their fitness to practise is impaired. All that regulation has to be financed by annual fees, and the current challenge by the dentists’ trade union (BDA) was to a decision by the GDC to raise the annual fee to £890 per dentist.

As I shall explain, Cranston J decided that the consultation in advance of that decision was unfair and hence unlawful.

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Lord Justice Jackson: legal aid should remain for clinical negligence

13 September 2011 by Isabel McArdle

Lord Justice Jackson spoke in strong terms last week to the Cambridge Law Faculty on the controversial topic of legal aid and legal costs reforms.

The architect of the proposed reforms to legal costs made clear his position on the government’s proposed amendments, set out in the Legal Aid, Sentencing and Punishment of Offenders Bill, which was reviewed by the Committee of the House of Commons today, 13 September (listen to the committee recording here). He was keen to highlight which parts of the reforms reflect he views expressed in his report, and which parts he does not consider to be in the interests of justice. He said, in summary:

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Legal aid reforms will be catastrophic for victims of medical negligence

22 November 2010 by Henry Witcomb

The government’s proposed reforms to legal aid will have a catastrophic effect on those who have suffered as a result of negligent medical treatment.

When Kenneth Clarke informed Parliament on Monday that

Legal aid will still routinely be available in civil and family cases where people’s life or liberty is at stake, or where there is risk of serious physical harm or the immediate loss of their home.

he clearly did not mean that the destruction of a person’s life or the suffering of seriously physical harm through the mismanagement of their medical treatment was to be included within this. If he had meant that he would have proposed at the same time that clinical negligence would continue to be funded by legal aid.

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