REPORT BY THE COMPTROLLER AND AUDITOR GENERAL:
HANDLING CLINICAL NEGLIGENCE CLAIMS IN ENGLAND (HC 403)
Memorandum submitted by Dr Anthony Barton
Victims of clinical negligence are rightly entitled to compensation; there must be affordable access to justice. Most cases are legally aided and most cases fail. The legal aid system (available only to a minority) is fundamentally flawed:
1. Funding is granted on the advice of the applicant's lawyer; the system is inherently biased, creating perverse incentives for unmeritorious cases to be pursued. This is amply borne out by the low success rates of these cases.
2. The usual "loser pays" rule of litigation does not apply to the legally aided claimant who enjoys costs protection; the claimant is in a no lose position and the health service defendant is in a no win position. Cases may be settled irrespective of merit in order to avoid irrecoverable legal costs (especially in low value claims). The system is inherently unfair.
The problems of clinical negligence litigation are inextricably linked to the flaws of the legal aid system. I hope that you will raise these issues when the Committee meets on 17 October 2001. Please contact me if you have any queries.
Dr Anthony Barton
Solicitor and Medical Practitioner
5 October 2001