Bar talk

The Government plans to publish a white paper on the viability of a fixed tariff scheme of compensation in clinical negligence cases. The tariffs will depend on the severity of the claim and will include non-financial compensation such as increased nursing help or medical support at home.
The scheme is not intended to block clinical negligence claims but to remedy the situation where the cost of a claim exceeds its value. Nor is it understood to be a no-fault compensation scheme.
In an article in The Observer on 8 July, Alan Milburn, the Health Secretary, was reported to have said that he wanted to end the blame culture and that as far as possible lawyers should be kept out of claims under the scheme. A Government source was quoted as saying that through the scheme it was hoped that patients would get more money, more quickly, with less stress; and that ambulance-chasing lawyers were creating a culture where the public was going to court rather than settling out of it.
That lawyers were blamed for the increase in claims is tiresome. The main reason for this increase is the growing inclination of patients to question the competence of health care professionals. Redress for incompetence can (usually) only be obtained through lawyers.
It is my experience that many litigants turn to litigation only as a last resort, because no one was prepared to tell them what had happened or how it had happened; and/or no one was prepared to take responsibility. Sometimes it is simply because no one would say sorry.
Seeking compensation under the scheme will not end the blame culture. To succeed a patient will surely have to prove an injury; will have to identify the health care professional responsible; will have to prove incompetence; and will have to prove that the incompetence resulted in the injury.
If lawyers are to be kept out of the scheme, how are patients to be guided in their claims? Where are they to obtain the evidence that what happened was incompetent? Where and how will they obtain an expert's opinion, which surely will still be required to establish incompetence? Most importantly, who will advise them whether the scheme or traditional litigation is best for them?
If patients are to be attracted to the scheme they will need to be satisfied that it ensures a level playing field with equality of teams. It is difficult to see how a patient could match the resources available to the health care professionals if he is discouraged from (or has to pay for) access to lawyers.
One imagines the scheme will be aimed at the lower levels of compensation (perhaps under £15,000) where costs can easily exceed the claim's value. The problem is that the value of the claim is not directly related to its complexity. Are complex claims to be excluded?
It is hard to accept that, under the scheme, a patient will be better off financially than by pursuing litigation. No other analogous scheme has achieved this. However, were this to be so, it would be a major attraction for the scheme. It would be interesting to see how such increased compensation was to be financed.
There may be difficulties administering the non-financial awards (nursing/ medical care at home). How is the patient to ensure quality control? Who would be providing these services? The compensator may be the last body the patient wishes to be responsible for such services. How would the provision of these be enforced? This part of the scheme may prove unworkable or more expensive to administer than awarding the cost of such services.
Provided a patient is in no worse a position under the scheme (when compared with traditional litigation) as to both the prospects of success of a claim and the level of the award, the scheme should be welcomed.
The fear is that a patient will be worse off under the scheme because it is an exercise in saving money.
Jeremy Pendlebury is a barrister at 7 Bedford Row