The importance of ensuring independent, rigorous, judicially-regulated investigation

I read with interest, an excellent article in The Times this week from Anthony Barton, about how clinical negligence litigation is vital to ensure patient safety, and the importance of ensuring independent, rigorous, judicially-regulated investigation.

I'm sure many clinical negligence lawyers have lost count of the number of times they've had to grimace at a social event when someone has asked them their occupation, having to then quietly brace themselves for the onset of labels like "ambulance chaser" and how they are seemingly wholly responsible for the crippling debts of the NHS. But what people tend to overlook in their criticism is that pursuing clinical negligence claims is vital to implementing change where there has been poor compliance, lack of following of procedure and protocol, sub-standard treatment and inadequate training or supervision, all of which result in patients becoming injured, or in some cases losing their lives.

It is not disputed that the NHS is an extremely precious resource and one that should be protected at all costs, but in our roles as Clinical Negligence Lawyers we do not set out to punish the Clinicians who make honest mistakes, mistakes happen, but surely that shouldn't negate the right of a patient to expect and receive adequate medical care, and to be compensated for any injury that arises when that does not happen? Anyone who attends a Hospital at a time of need should not expect to leave that hospital more poorly or more injured than when they arrived, especially if such injury could have been avoided.

Clinical negligence claims cost the NHS more than £2 billion last year. Clearly therefore, there is a vital need for continuing litigation to serve as a benefit to the public as a whole, and in improving patient care for the better.

It has long been argued that Clinical negligence litigation is just a commercial activity driven solely by claimant lawyers, who, it has been suggested, are the only real winners in terms of legal costs, but the majority of Claimant solicitors run cases on a no win no fee basis. Many cases never get off the ground. Claimant's solicitors do not get paid for their time in investigating and running those cases. They do not get paid if the case fails, whereas the NHS solicitors are paid in full by the Trust regardless of the outcome. The NHS control the outcome of these cases. It is consensual, and entirely at their door as to how they respond to a claim.

Clinical negligence cases benefit greatly from legal representation since not all mistakes made by doctors, hospitals or Nurses actually amount to negligence. To even establish a viable case a number of important elements must be proven:

• The presence of a professional relationship between the medical provider and the patient (duty of care).

• Evidence of the provider's failure to adhere to the standard of care (breach of duty).

• Confirmation that the breach resulted in harm that would not otherwise have been incurred (causation).

• That the patient suffered quantifiable harm as a result of the breach (Damages).

It is only when all 4 factors come together and can be proven that litigation can even be pursued.

It is interesting also to note that only 7,000 clinical negligence cases were settled successfully last year, from a staggering 300,000 enquiries, representing a tiny proportion of less than 3% of claims that were successful. Should these statistics be raising a number of questions in relation to access to justice issues, and why pursuing a medical negligence claim is so tough? Is it perhaps because medical procedures are often complex, making it difficult or sometimes impossible for patients to properly understand what went wrong, or even whether they have a claim. Or is it a case of being unable to obtain clear unequivocal evidence to support the claim, which can be challenging and expensive. Expert opinions are vital in medical negligence cases, but finding suitably qualified independent experts to report in sometimes extremely tight timescales can also pose a challenge. Pursuing a medical negligence claim can also be time-consuming, mentally exhausting and expensive, which may also be a deterrent. Navigating the legal system and understanding complex medical negligence laws can be overwhelming for Claimants.

We do the jobs we do because we care, not because we don't. There are benefits to all involved in uncovering truth, fighting for justice and raising accountability. The primary purpose of clinical negligence litigation may be to obtain compensation for the 'victims', but it is also to ensure a system of professional accountability through medical investigation, justifying further the need for clinical negligence litigation.

We all know that the world would be a better place without people being injured at all, but it is clear to see that litigation provides independent, rigorous, judicially regulated investigation, and as long as the health service continues to place its reputation above investigation there will always be a need for it. Litigation drives patient safety and improvement, without it there would be no learning opportunities and we would see the same errors being made again and again.

Clinical negligence is a daunting reality that can turn lives upside down, leaving victims grappling with physical, emotional, and financial burdens. In such situations, seeking justice becomes imperative, and the expertise of clinical negligence lawyers becomes invaluable to ensure that victims receive the compensation they rightfully deserve to piece their lives back together.

And if nothing else it acts as a free clinical scrutiny service for the taxpayer!