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EDUCATION AND DEBATE: Brian Capstick The future of clinical negligence litigation? BMJ 2004; 328: 457-459 [Full text]

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The Problem with Legal Costs

Jay Ilangaratne   (24 February 2004)

The Problem with Legal Costs 24 February 2004
Jay Ilangaratne, Founder Medical-Journals.com Send response to journal: Re: The Problem with Legal Costs	According to the the NHS Litigation Authority website(www.nhsla.com), 7,798 claims of clinical negligence were received in 2002/03. It estimates that potential liabilities for clinical negligence would be £5.9 billion at 31 March 2003. This figure represents the estimated value of all known claims and those incurred but not reported which may settle or be withdrawn over future years.The potential liabilities for non-clinical risks is an estimated £72 million at 31 March 2003. Brian Capstick's paper is informative as to existing and proposed methods of handling clinical neglignce claims.Unfortunately, it is rather vague,if not entirely lacking,in respect of legal costs incurred by the NHS.Whilst it is unlikely that no fair-minded person would object to genuine financial compensation to those who have been injured due to medical error,the overall costs incurred in the process,is undoubtedly a cause for concern and debate. The legal costs,to be precise. Interestingly, in the accompanying commentary of Bertie Leigh,he compares the 18000 new 'Legal Aid' certificates issued in 1991 with 6000 last year.That alone indicates a considerable drop in clinical negligence claims,but in reality, that is not the case.The most likely reason for the reduction in certificates is the sweeping restrictions in civil legal aid. While the tax-payers' funds seem to be saved from the 'Legal Aid' end,at the other end,NHS seems to be expending increasing amounts annually. So have the lawyers really lost anything at all as a result of cuts in civil funding in relation to clinical negligence? It seems not.Much of it (and probably increasing sums) appears to be still coming from the tax- payers' pockets, at the NHS-end.Without being presumptuous,is it not the case that solicitors have an inherent conflict of interest when it comes to litigation costs of the NHS? It will be interesting to know what proportion of cases are outsourced to private law firms, and whether the NHS Litigation Authority considers that strengthening its in-house resources could lead to substantial costs savings in the future. Perhaps,things are already moving in that direction, but in a rather complex close-knit legal community, advancing the interests of the tax- payer might be an awkward task. Competing interests: None declared