Wednesday, 27 November 2013

Fun boy three

Earlier this week I had the pleasure of meeting a charming, alert and physically able septuagenarian and her husband involved in a road traffic accident earlier this year.

Mercifully, they were not badly hurt even though the driver of the other vehicle travelling at an estimated speed of 80 mph on a country road was far less fortunate. He will never know that liability for his actions is not disputed.

Ahead of our meeting I had the advantage of reading the mountain of letters and accompanying documents that have so far been generated by this lady’s insurers and their panel solicitors since their appearance within days of the event.

The bewildering swathes of paperwork revealed settlement with third party insurers, actual or imminent, of the more serious yet still modest claim of the husband as passenger. His wife had come to me in a quandary about the advice given to her.

She’d been packed off to see a ‘doctor’, appointed by the panel lawyers or their masters whose credentials were not evident, at a relatively local general practice which has a seemingly fresh and current website – but no mention of the practitioner concerned.

His or her report was not with the letter I saw advising a settlement figure similar to that ‘agreed’ for spouse. I wondered if this apparently generous, by comparison, figure had regard to the injuries recorded in the record of telephone instructions clearly naming her and containing clear references to her husband as the other claimant.

Because the injuries listed were his not hers.

Her great worry seemed to be the indication throughout the reams of ‘advice’ that she might be held partly responsible and the effect that might have where the police have said typically that they still haven’t completed their investigations.

No advice or help on that point. Instead, she has telephone calls from her insurers – yes, the insurers, not the solicitors – urging her to give instructions to settle without further delay.

Perhaps the explanation for this modus operandi is that the solicitors cannot afford to spend further time on it, having explained that they will receive £200 only for the first stage of the claim and £300 for the second.

Within the same tranche of documents the lawyers explain that the partner with overall responsibility for the case is charged at £275 an hour.

A selection of “case supervisors” (they’ve changed a number of times) have in common names that suggest they are all located in an overseas office to which conduct of the claim may be transferred at any time, subject to the right to ask for it to be transferred back.

Charge rate for them - £275 an hour.

Of course, the nitty gritty is dealt with by a “case handler (non-solicitor)”. Well, I say “a” – there appears to have been a succession of them too.

And their hourly rate? Er, £275.

So, how do we run a case at a combined hourly rate of £825 where the recoverable costs may be only £200?

The lengthy and consumer unfriendly terms and conditions reassure the reader (if still awake) that he or she doesn’t have to pay because their insurer will under the terms of the policy. Nice insurer.

There is of course the warning buried in those terms that whilst the policy-holder has the right to instruct other lawyers of choice, the panel lawyers are entitled to retain all papers until their charges have been paid. One infers that will be at the full indemnity rates that insurers are ‘liable’ to pay.

Funny – that figure of £825 rings a bell…oh, yes – that was the amount of the referral fee paid by the muppets who almost undersettled by 8 times the case I wrote about in Cleaning bills and Crash and capture.

There’s a clue, perhaps, for the supine and toothless regulators who appear to have neither appetite nor ability to detect and combat problems with the ‘spirit’ of circumvention of referral fee prohibitions.

None of this is enough, of course, for the interest-starved insurers. It’s made abundantly clear that the rehabilitation providers, whose input is undetectable, will be entitled whatever the ‘global’ settlement to their fees of nearly £500.

No need for an embarrassingly visible (if someone breaks ranks) rebate - see How it works – car insurance - now that we have the wonders of alternative business structures.

All this is paid for by Joe Public who is repeatedly conned – sorry, reassured – into believing that it’s a better service at lower cost.

My lady just wishes it was all over. The horrific crash that occurred a few months ago is nothing compared with the nightmare she’s found herself in at the hands of this trio – insurers, panel lawyers and ‘rehab providers’. Fun boy three.

The lunatics have taken over the asylum.

Sunday, 10 November 2013

Fit for purpose

A recent report from the National Audit Office kicks off the perennial debate about how much of the NHS budget has to be allocated to payment of compensation and costs arising from clinical negligence claims.

We've looked at this in past years when Kenneth Clarke was in charge of the anti-lawyer rhetoric – boosting it with some, at best clumsy, distortion of the actual figures.  See Repeat prescription and Legal highs.

The explanation and the very important message doesn’t change.  It’s perfectly simple.  Stop making mistakes and we’ll save money as well as a great deal of heartache.

Within any litigation portfolio will be an element of costs generated by failed claims, but it is the thin end of the wedge.  In the main we are talking about the cost of successful claims – proceedings that our courts, applying the law of this country, consider justified and worthy of compensation awards.

The people applying the law are ultimately the judges we appoint to decide cases on the principles that our society has adopted and the lawyers within the industry who in many situations settle cases with the benefit of understanding what the court will probably decide if they don’t.

There are two ways to save money. One is not to foul up in the first place.  The other is not to play brinkmanship after you do.

Plenty will say it shouldn’t be like this.  What do they think has to change?  As ever the same ‘culprits’ will be brought under the spotlight and given a kicking.

It isn’t the rapacious ‘fat cat’ lawyers on conditional fee agreements who make the rules for their own benefit and exploit them to milk the service – as politicians and insurers would have everybody believe.

Awards are made and deals done according to the law of the country.

If we can’t or won’t improve the standards of performance within our health service, then another way of reducing claims and cost is to drop the bar - lower standards.

Instead of an objective evaluation of what could and should be achieved or avoided, we replace that with some sort of quota system.  The population of this country agree, for example, that one in five, ten or however many serious birth defects, is an acceptable fail rate.

Then when somebody makes a claim, all the health service has to do is to point to the statistics, say ‘we’re within quota’ and that’s it!

'Awfully sorry it happened to your child but, you know, we can’t get it right all the time.  It’s just tough. It’s better here than in some other places in the world.'

Is that where we’re going?  Is that what this country wants?

If so, we should get on and implement something along these lines so that all those who think it is a better state of affairs than compensating innocent victims can have their way and stop whining about the costs.  Those of us who think it isn't good enough can see exactly how the land lies and make some life decisions (like move to another country with higher standards and aspirations).

If our government is going to do something to this effect, then it needs to do it by democratic process and parliamentary debate.

It shouldn’t be done by emasculating the lawyers, whether though another assault on evil no win, no fee “ambulance-chasers”, or draconian rules drawn up by committees steered by liability insurers and their legal champions to block access to justice - to seemingly preserve standards but put them beyond reach.

Perhaps there is hope yet that we can retain some dignity and continue to lead the way here as elsewhere.  Amongst the comments on the latest statistics, the words of the Public Committee Chair, Margaret Hodge, give us some cause for optimism:-

‘The department needs to buck up and take responsibility for this.  It needs to review its monitoring and reporting process to ensure that all relevant bodies can work effectively together to deliver maternity services that are value for money and fit for purpose’.

That ‘value for money’ bothers me slightly, not that I think we should be oblivious to the cost.   But if we spent as much as we do cleaning up on making sure that we are properly managing competent people who have an understanding of the true value of human life, that would be money well spent.

Then we’d have something fit for purpose.