Letter: Suing the doctors

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The Independent Culture
Sir: Lord Justice Otton is rightly concerned by the difficulties facing claimants in medical negligence actions (report, 12 November). However, he fails to recognise the detrimental effect of legal aid on the litigation process. Lawyers are encouraged to pursue weak cases, depleting funds intended for patient care.

According to the Legal Aid Board, the main funder of medical negligence actions, 12,556 cases were closed in 1996-97. In only 2,503 (fewer than 20 per cent) were damages awarded or agreed, despite the practice of legal aid "blackmail", when modest claims are paid off regardless of merit to avoid greater irrecoverable legal costs.

By contrast, medical negligence claims funded by conditional fee agreements (supported by after-event insurance) have a very high success rate because cases are properly assessed. There is an identity of interest of the claimant, the lawyer and insurer: all want the claim to succeed.

The way forward is for medical negligence litigation to be funded by conditional fee arrangements with state assistance where necessary for the expert reports and the insurance premium.


London N1

The writer is a solicitor and medical practitioner