A MAN from Bodmin whose clinical negligence claim against Truro's Royal Cornwall Hospital following the death of his wife was settled out-of-court says he's "disgusted" at new government proposals that will make it all but impossible for people to bring similar claims against the NHS.
Pamela Savage, known as Jenny, died at the hospital after inhaling vomit following successful surgery for cancer of the bowel. The coroner ruled that Jenny had died from natural causes but her husband Ken decided to bring a claim against the hospital following consultation with his solicitor.
The claim alleged that post-operation observations were not carried out as often as they should have been and that episodes of heavy vomiting were not recorded in Mrs Savage's notes. It also said that clinicians missed a collapsed lung and exposed her to unnecessary risk by failing to give her preoperative steroids for pre-existing breathing difficulties.
The NHS Litigation Authority eventually admitted liability and causation for Mrs Savage's death. Ken Savage was paid damages and legal costs in December.
Mr Savage is now "furious" that the Legal Aid, Sentencing and Punishment Offenders Bill 2011 (LAPSO), due to come into effect next year, will block those in his position from raising similar cases in the future.
His solicitor Tim Goldburn, partner at Falmouth-based Preston Goldburn, explained that LAPSO will mean that, in general, the NHS will be unable to recover legal costs against a claimant.
"On the surface it sounds like a positive step," said Mr Goldburn. "However, this 'no costs' rule will not apply if the NHS makes an offer and the claimant turns it down, in which case they will have to pay all legal fees if they lose the case. In effect, the claimant will be forced to take an offer from the NHS, which could lead to derisory offers becoming the norm."
In addition solicitors operating under no-win, no-fee arrangements are currently able to recover fees from the NHS. If a claimant is successful they pay a normal hourly rate plus an additional cost based on the risk taken on by the firm in question. The NHS currently pays that extra cost so long as the claim isn't settled.
"Under LAPSO the NHS won't have to pay those extra costs," said Mr Goldburn. "It will come out of the compensation payment instead. Ken Savage was able to find out the real reasons for his wife's tragic death because we were willing to take the risk that we could persuade the NHS to make a reasonable offer."
The solicitor doubted if any legal firm could afford that risk under the new proposals.
Ken Savage is angry that the new measures will prevent people from making claims in the future. "It's not right," he said. "Why should people who go through something similar have to pay to get justice?"
source: thisiscornwall.co.uk
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