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Medical Negligence Claims And Legal Aid

Volume 593: debated on Thursday 3 September 1998

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asked Her Majesty's Government:What proportion of the 17 per cent. of successful legally aided medical negligence claims were settled for commercial reasons regardless of merit to avoid irrecoverable legal costs. [HL 3201]

The reasons why parties settle individual claims are entirely a matter for the parties.

asked Her Majesty's Government:With regard to the Government's proposal to limit legal aid contracts for civil legal aid in medical negligence cases to lawyers who have shown competence in this area (as denoted by membership of panels such as those maintained by the Law Society and Action for Victims of Medical Accidents), what is the evidence that lawyers who are members of such panels achieve better results than lawyers who are not members of the panels. [HL3206]

It is intrinsically probable that lawyers who are specialists in a specialist legal area will produce better outcomes. The lawyers who have gained accreditation to the panels operated either by the Law Society or the Association of Victims of Medical Accidents have demonstrated expertise in this area of law. In just the way that there are specialisms within medicine and patients are referred to those who demonstrate the relevant specialism, so too I believe that people in receipt of legal aid should similarly be directed towards those lawyers who have demonstrated specialism in litigating medical negligence cases.

asked Her Majesty's Government:With regard to their proposal to limit legal aid contracts for civil legal aid in medical negligence cases to lawyers who have shown competence in this area, how they envisage that this will address the problem of legal aid "blackmail", whereby unmeritorious claims are settled to avoid irrecoverable legal costs occasioned by the operation of Section 17 of the Legal Aid Act 1988. [HL3215]

In all areas of civil law I am considering ways of tightening the merits test, so that unmeritorious cases should not receive legal aid in future. The fact that assisted parties rarely have to pay costs if they lose can deter their opponents from pressing their cases fully, regardless of the nature of the assisted party's claim, its value, or its merits. However, the Government do not believe that removing assisted parties' protection from paying costs would be the right action to take. To do so would risk leaving assisted parties, who are among the poorest members of society, facing large debts that they would never be able to pay off, and could deter people from bringing important and meritorious cases.

asked Her Majesty's Government:With regard to their proposal to limit legal aid contracts for civil legal aid in medical negligence cases to lawyers who have shown competence in this area, how they envisage that this will address the problem of unrealistically optimistic opinions provided by the applicant's lawyer who has a direct financial interest in advancing the case. [HL3216]

It is acknowledged to be very difficult in the early stages of a medical negligence case to identify the prospects of success. That is why the Legal Aid Board often limits a certificate to allow only the obtaining of a medical report and obtaining counsel's opinion on the prospects of success. A large part of the problem of high failure rates in medical negligence cases is caused by lawyers without sufficient experience of this area of law undertaking investigations in cases which ought to have been disposed of sooner, because they either lack the expertise to identify the important issues soon enough, or fully to understand the implications of a medical report or the contents of medical records in relation to the prospects of success. I believe that by limiting representation to those who are experienced in this field of litigation and who have contracts with the Legal Aid Board, we will ensure that cases are not taken either at all where the prospects of success are poor, or are taken no further than is absolutely necessary to establish what are the prospects of success. Further, where lawyers are consistently over-optimistic it will be possible to withdraw the contract that allows them to take these cases.