Ministers could rule out legal aid for cases of medical negligence cases

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The Independent Online

Patients who have been injured by medical blunders could be denied the right to bring their claims to court under a government review of the soaring cost of litigation against the NHS.

Patients who have been injured by medical blunders could be denied the right to bring their claims to court under a government review of the soaring cost of litigation against the NHS.

In a move that would save the Treasury millions of pounds each year, ministers are exploring proposals to replace legal aid – which is used in 70 per cent of negligence cases – with "no win, no fee" agreements between patients and their solicitors. A letter from the Lord Chancellor's Department to a doctor complaining about the cost of compensation confirms that research is under way to establish where the "burden of risk might be shifted from the public purse to private practitioners". The NHS is facing a record £4.4bn bill in outstanding negligence claims.

The letter says ministers are also looking at "non-financial remedies in cases of clinical negligence". It adds: "This Department and the Legal Services Commission are working closely with the Department of Health to ensure a common approach to the funding of claims and to reduce public expenditure on clinical negligence cases."

Solicitors' and patients' groups said any reduction in legal aid would leave thousands of people without recourse to justice. Arnold Simanowitz, the chief executive of Action for Victims of Medical Accidents, said: "I think it would be a scandal if they removed public funding for clinical negligence cases."

Research has shown that solicitors take conditional fee cases – where they do not get paid unless they win – only if there is at least a 70 per cent chance of success. Mr Simanowitz said: "The conditional fee market is not ready to handle complex medical negligence cases. Many people would have to pay thousands of pounds to investigate their claims before solicitors would be prepared to take them on." David Marshall of the Association of Personal Injury Lawyers said: "This is the wrong time to look at extending conditional fees to clinical negligence cases."

The letter acknowledges that "no win, no fee" has "often proved to be unsuitable for complex ... clinical negligence claims" and says a decision depends on the "maturity" of the fee market.