Civil legal aid, however, still continues in two areas which impact on healthcare: clinical negligence and pharmaceutical product liability. The Government is now so concerned by the cost to the health service of clinical negligence litigation – outstanding contingent liabilities are estimated at billions – that it will shortly publish a White Paper. Economic arguments possess a force that reason lacks. But how has the healthcare industry become targeted as a deep pocket?

Most healthcare claims are legally aided because of their cost and complexity. Civil legal aid is fundamentally flawed. First, funding is granted on the advice of the applicant’s lawyer who has a financial interest in advancing the case – a clear conflict of interest creating perverse incentives to pursue unmeritorious cases. This is amply borne out by the near zero success rate in drug claims against the pharmaceutical industry, and that most clinical negligence cases fail – too often the only beneficiaries of legal aid are lawyers. Second, the usual “loser pays” rule of litigation doesn’t apply to an unsuccessful legally aided litigant who is in a no lose position while the defendant is in a no win position. Cases may be settled by defendants regardless of merit to avoid irrecoverable legal costs, a practice described as legal aid “blackmail” in Parliament and by the Bar Council. The effect of this rule was described by the House of Lords as unfair. It also arguably infringes the right to a fair trial under Article 6 of the Human Rights Act. Furthermore, because the reasons for funding decisions are privileged and confidential, the legal aid system is unaccountable to Parliament, to the courts and to the public.

Legal aid fulfils at no risk the economic aspirations of claimant lawyers who have little incentive to develop the commercial discipline imposed by conditional fee work. The continued availability of legal aid thus inhibits the growth of the conditional fee system and the widening of access to justice.

Most cases deserving compensation are, therefore, unlitigated because legal aid is only available to a small minority. Most litigated claims are unsustainable because legal aid is awarded with scant regard for merit. We can all reasonably wonder at the relationship between litigation, liability and compensation. For example, the benzodiazepine tranquilliser case involved thousands of claimants and cost over £40 million in legal aid without a penny obtained in compensation. In clinical negligence, the most expensive claims concern cerebral palsy, of which only a small percentage are attributable to birth events, and an even smaller proportion are attributable to negligent birth events. Medical mishaps are emotive and may bring together the lawyer, the layman and the scientist, a combination sometimes better at generating heat than light in the quest for justice. Natural sympathy lies with the victim, and this is exploited by the claimant lawyers’ lobby to provide uncritical support for legal aid.

Anyone injured as a result of deficient healthcare, whether clinical negligence or a defective product, is rightly entitled to compensation. There must be affordable access to justice. However, the present legal aid system fails woefully. Instead of empowering patients, legal aid enriches lawyers and impoverishes the health service. The costs, whether to the health service or the drug industry, are passed on to the patient by diverting funds intended for patient care. The forthcoming White Paper should be sufficiently comprehensive to consider the effect of litigation on the whole of the healthcare industry. The solution lies in the radical reform of the funding of litigation. The problems of litigation against healthcare providers are inextricably linked to the problems of legal aid. The present system should be scrapped and replaced by a part privatised system; state funding for the investigation of claims, and conditional fees for the conduct of litigation. This will widen access to justice, provide a fair balance of risk between the parties, and create appropriate incentives to pursue cases according to their merit.

I would like to see a chart like this one but with the state by state breakdown. Anyone know of a good source?

Do you have a good source to back up your claim?

So we settle.”

Most of the time you guys don’t make that call, your insurer does. And the likelihood of a malpractice case resulting in punitives goes beyond “statistically unlikely.” It’s nearly infinitesimal. You’ve got a better chance getting punitives after a car wreck. Have you quit driving?

From what I understand with this FL supreme court ruling, the lawyers are not bypassing the overall pain and suffering cap of $750k but only are increasing their percentage take from the total sum of money from a settlement/judgement. By doing this the patients are getting less from the final settlement/judgement and probably should find another lawyer if they are asked to waive their “constitutional rights”.

Additionally, I noticed that the FMA announced that one of the malpractice insurers (FPIC) will be lowering insurance rates from 8-19%! I guess things may be improving down there.

http://www.fmaonline.org/members/090506%20FPIC%20rate%20decrease.html

Any of the lawyers here have input on this?

What the hell ER do you work in where you do MRA’s in the ER? You sound like one of those “expert witnesses” who have never actually set foot in an ER.