Medical Malpractice Compensation
Working towards a better solution

The actual concept of individuals and organisations actually being accused of negligence or malpractice in relation to health began with the case of Donoghue v Stevenson in 1932 when a decomposing snail was found in a purchased bottle of Ginger Beer (a prospect we all fear even today!). This was a landmark case in which a commercial entity was found to have "breached a duty of care" toward its consumers. This duty of care to provide a product or service that will not damage the health of the recipient found it's benchmark in regards to the national health service in 1950 with the Bolam case. This resulted in the rule of thumb that a doctor is not negligent if what he has done is accepted by a responsible body of medical opinion, which is now widely known as the "Bolam Test". More recently though, (2000) in the case of Penney & Anor v East Kent Health Authority the stipulation was added that such medical opinion had to withstand "logical analysis" which, in cases where two similarly accredited medical experts differed in opinion, gave the judge the final say on which expert he believed to have offered the most logical explanation.

To uphold these benchmarks for negligent behaviour and deal with the rising number of individuals claiming to be compensated for alleged negligent behaviour by doctors, surgeons, physicians, nurses and other healthcare workers the government created an independent organisation called the NHS Litigation Authority (NHSLA) in 1995 to defend the state against such claims. The authority does not deal with cases relating to G.P. and other private practices but there will always be an organisation responsible for any medical practitioner under the wing of national health service funding. If the healthcare organisation is privately funded (such as a BUPA facility) the claimant will generally be pursuing compensation from the appropriate insurance company.

Legal aid used to be available to all who wished to pursue a claim against a medical practitioner for behaving negligently but due to the amount of fraudulent and frivolous claims being made the government was forced to suspend legal aid for the majority of negligence case types. This action was taken after the National Audit Office found that in the majority of claims, the associated legal costs actually exceeded the final compensation awarded to the affected individual. This has placed the initial burden of cost directly on the shoulders of the representing law firm. This requires that the solicitors gain some sort of recompense for the risk taken in funding a claimant's case in the form of a conditional fee arrangement where a percentage of the compensatory pay out is retained by the acting solicitor. Ensure you clarify all fees prior to commencing proceedings with a particular law firm.


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