Proud to be a lawyer ???
Discussion
Breadvan72 said:
The essence of the Daily Mail mentality, as exemplified by the opening post, and some other posts on this thread, appears to be to take one story and from that story conclude that an entire system is fundamentally broken. The subject can be police, prisons, hospitals, schools, courts, you name it. The why oh why ists read these stories, and confidently assert that all of these systems are run entirely by the corrupt and/or the incompetent. You can point out to them as much as you like that the story shows things going wrong, or indeed that the story has been misreported, and that reality is nuanced and complicated and not cartoonish and simple, but you will be wasting your effort. The why oh why ists want to believe that everything is broken. It seems to comfort them in some way.
They seem also to think that complex societal problems have incredibly simple solutions that can be arrived at by a couple of sensible good chaps in the pub that no one has ever thought of before. It must perhaps be pleasant to think that the World is so simple, but also rather gloomy to think that everyone (except you and your like minded pub chums) is wicked, venal, reckless, lazy and incompetent.
This is a fair point, but what do? They seem also to think that complex societal problems have incredibly simple solutions that can be arrived at by a couple of sensible good chaps in the pub that no one has ever thought of before. It must perhaps be pleasant to think that the World is so simple, but also rather gloomy to think that everyone (except you and your like minded pub chums) is wicked, venal, reckless, lazy and incompetent.
julian64 said:
and the doctor was given the last say as to whether compensation was paid out or defended within reason.
Nowadays the doctor in question is given no say in whether the claim is defended and its done on a purely financial basis.
Well unless medical insurance is different from normal liability insurance then you don't have to instruct your insurers to deal with a claim i.e by filling in a claim form. You have to advise them of it under 'disclosing material facts which you could do for information but instruct them that you will be dealing with the matter yourself and will advise them the outcome.Nowadays the doctor in question is given no say in whether the claim is defended and its done on a purely financial basis.
So you could force a party to try to fight their claim against you via the courts. If you feel confident then that is surely the right path to take against the scammers.
JustinP1 said:
It is for exactly these type of situation where there simply must be the right of redress.
The pure theoretical economist in me would say that as a system, the NHS is doomed to if not failure, running at a huge inefficiency.
If you are in the private sector and people can get a better 'deal' elsewhere, people will. As a result, the management of the organisation must put in place systems an staff which aims to be the best.
If an organisation doesn't do this, then it goes bust. It's natural selection, which continually increases standards throughout the market.
The difficulty with the NHS is that there is not that driver. The only thing economically driving a health authority to improve standards is the cost of claims against them, and the risk that staff may (rarely) lose their jobs. If you take away the right to redress, or that negligent staff are not pulled up, then standards do not raise, they fall.
I'm not really sure I understand your final comment. Healthcare economics is challenging, not least because it doesn't really work in the same way that a competitive market economy works, it's in an almost perpetual state of market failure. However, that's not say that the organisation has failed, far from it, it just means that it's not operating in a conventional manner. It's not true to say that the only economic driver for a health authority is the cost of the claims against them, that's a risk that needs to be managed and is usually accounted for through insurance. The economic drivers within a health authority are based around three key concepts; efficiency (technical, economic and allocative), opportunity cost and marginal analysis. All these things add up to ensuring that healthcare is delivered in a cost-effective manner, equitably and for the maximum benefit of all. These things are separate from any quality assessment or redress system so I'm not about the connection you're trying to make? Either way, I think you're right, if you take away the ability to right wrongs then standards will certainly not get any better.The pure theoretical economist in me would say that as a system, the NHS is doomed to if not failure, running at a huge inefficiency.
If you are in the private sector and people can get a better 'deal' elsewhere, people will. As a result, the management of the organisation must put in place systems an staff which aims to be the best.
If an organisation doesn't do this, then it goes bust. It's natural selection, which continually increases standards throughout the market.
The difficulty with the NHS is that there is not that driver. The only thing economically driving a health authority to improve standards is the cost of claims against them, and the risk that staff may (rarely) lose their jobs. If you take away the right to redress, or that negligent staff are not pulled up, then standards do not raise, they fall.
10 Pence Short said:
Before jumping to conclusions over the need to overhaul our entire civil justice system or shield the NHS from negligence claims, perhaps some should read the article in more detail.
The costs claimed by Rapid were challenged by the NHS and much, much lower ones imposed by the courts. In the hot drink case, for example, the costs were slashed by the court from £58,000 to £5000.
To me this tends to suggest the NHS is no shrinking violet, unable to defend itself, the courts are doing their job by scrutinising costs and the story is being presented in a somewhat one dimensional way by the Daily Mail.
thanks for clearing that up,i have an aversion to reading too many daily mail links in a short period of time,and there are many posted on here .The costs claimed by Rapid were challenged by the NHS and much, much lower ones imposed by the courts. In the hot drink case, for example, the costs were slashed by the court from £58,000 to £5000.
To me this tends to suggest the NHS is no shrinking violet, unable to defend itself, the courts are doing their job by scrutinising costs and the story is being presented in a somewhat one dimensional way by the Daily Mail.
i am sure there are many genuine claims,but i have a feeling the problem is down to how people in the UK are adopting the "where there is blame,there is a claim" culture from the US .my father lost out on the opportunity to become a pilot in the RAF due to a botched op on an ear problem related to being tone deaf,and my grandfather almost died after being taken off supported breathing before the anesthetic wore off in one operation,and actually felt the incisions and goings on during another (the exploding stomach in bed due to gas build up after the second op was none too thrilling for him either) . both times the surgeons were extremely concerned and took copious notes when discussing it with him.
neither my grandfather or father had any inclination to sue,although this was back in the 70,s and early 80,s ,when people just accepted mistakes sometimes happen,and in my grandfathers case he was more than happy to provide information that would hopefully ensure it was less likely to happen again.
sometimes people need to realise it is not a perfect world we live in,and the man that has never made a mistake has never made anything.
if we end up with a situation where people are to scared to do anything risky due to the chance of being sued if it goes wrong,we will have no one to blame but ourselves.
Zeeky said:
Why should an adverse event need to be negligent for compensation to be paid? Surely those who suffer the same consequences but in circumstances where negligence cannot be shown also need to be compensated for their loss?
Surely , negligence means that the event was avoidable and the fact that it wasn't avoided was attributable to a compnay or individual. 
Your definition is incorrect. Negligence means failure to adhere to the standard of care that is contextually appropriate.
Why should there be an entitlement to compensation for things turning out badly but without negligence? If I am driving carefully but still crash my car because a deer makes me swerve, or the wind blows a tree branch into the road, should I be compensated? If a medical procedure with variable possible outcomes turns out badly, having been competently performed, why should I be compensated? Who should pay?
Why should there be an entitlement to compensation for things turning out badly but without negligence? If I am driving carefully but still crash my car because a deer makes me swerve, or the wind blows a tree branch into the road, should I be compensated? If a medical procedure with variable possible outcomes turns out badly, having been competently performed, why should I be compensated? Who should pay?
A quick mini teach-in for non lawyers:
The law of negligence is about relationships between people that are not regulated by contract. In some circumstances, the law treats us as "neighbours" who have to take reasonable care not to harm one another by actions, omissions, and sometimes by words. The existence of a duty of care depends on context, and the standard of care to be taken also depends on context, but in summary you have to be reasonably careful not to harm others.
The law recognises that some things just happen by accident, with no one to blame.
In the context of medicine and other expert professional activities, the law requires the practitioner to perform to the standard of the reasonably competent practitioner versed in the relevant field of activity. The law does not require error free performance, and recognises that a practitioner can make a wrong judgment and not be negligent. At the same time, the existence of the law of negligence helps to impose discipline and professionalism on those who practise specialised arts such as medicine, law, accountancy, and so on. Take it too far and it promotes defensive practice, and can act as a brake on innovation. Abolish it and risk cowboy practices.
Ambulance chasing is a wretched thing, and allowing lawyers to take a commercial stake in the outcome of a claim is in my view a bad idea. We have to resist creeping Americanisation in the practice of law, and hold on to the traditionally higher ethical standards of English/Welsh and Scots lawyers, but the defences have been crumbling steadily for as long as I have been a lawyer.
Sometimes I think to myself: "Why not just be a shyster? Everyone thinks that I'm a shyster anyway, and I see shysters getting away with it. Why not just join them?" But, I don't want to. Most of the lawyers I know think the same as me, and make the effort to practise ethically, but maybe one day we will be a minority. I don't know. As I said, the OP and many others think that we are all crooks anyway, but I don't care what they think.
The law of negligence is about relationships between people that are not regulated by contract. In some circumstances, the law treats us as "neighbours" who have to take reasonable care not to harm one another by actions, omissions, and sometimes by words. The existence of a duty of care depends on context, and the standard of care to be taken also depends on context, but in summary you have to be reasonably careful not to harm others.
The law recognises that some things just happen by accident, with no one to blame.
In the context of medicine and other expert professional activities, the law requires the practitioner to perform to the standard of the reasonably competent practitioner versed in the relevant field of activity. The law does not require error free performance, and recognises that a practitioner can make a wrong judgment and not be negligent. At the same time, the existence of the law of negligence helps to impose discipline and professionalism on those who practise specialised arts such as medicine, law, accountancy, and so on. Take it too far and it promotes defensive practice, and can act as a brake on innovation. Abolish it and risk cowboy practices.
Ambulance chasing is a wretched thing, and allowing lawyers to take a commercial stake in the outcome of a claim is in my view a bad idea. We have to resist creeping Americanisation in the practice of law, and hold on to the traditionally higher ethical standards of English/Welsh and Scots lawyers, but the defences have been crumbling steadily for as long as I have been a lawyer.
Sometimes I think to myself: "Why not just be a shyster? Everyone thinks that I'm a shyster anyway, and I see shysters getting away with it. Why not just join them?" But, I don't want to. Most of the lawyers I know think the same as me, and make the effort to practise ethically, but maybe one day we will be a minority. I don't know. As I said, the OP and many others think that we are all crooks anyway, but I don't care what they think.
Breadvan72 said:
Your definition is incorrect. Negligence means failure to adhere to the standard of care that is contextually appropriate.
Why should there be an entitlement to compensation for things turning out badly but without negligence? If I am driving carefully but still crash my car because a deer makes me swerve, or the wind blows a tree branch into the road, should I be compensated? If a medical procedure with variable possible outcomes turns out badly, having been competently performed, why should I be compensated? Who should pay?
You should to my mind be compensated if the proceedure was not competantly performed, but as you say if [erformed competantly and the outcome is variable then no compensation. The problem is that you end up in cort trying to establish whether the proceedure was performed competently, this is when the legal bills rack up. I suspect that many cases though are settled before they reach that point, its the exceptions that make headlines.Why should there be an entitlement to compensation for things turning out badly but without negligence? If I am driving carefully but still crash my car because a deer makes me swerve, or the wind blows a tree branch into the road, should I be compensated? If a medical procedure with variable possible outcomes turns out badly, having been competently performed, why should I be compensated? Who should pay?
There is a need for compensation regardless of the cause. Negligence simply answers the question, who should pay? We currently have a system where, if the patient can prove negligence he is fully compensated and if he cannot he gets nothing. More likely he will get some of his claim because the case is settled.
With the NHS we all pay. It might be better to have a compensation scheme based on adverse consequences that is not dependant on proving negligence. This removes the need for expensive litigation, savings that can be put towards compensating people.
This is particularly attractive for low value claims where the costs exceed the value of the claim.
On the point of excessive claims for costs the other side of the story can be found here.
http://www.litigationfutures.com/news/firms-hit-ba...
With the NHS we all pay. It might be better to have a compensation scheme based on adverse consequences that is not dependant on proving negligence. This removes the need for expensive litigation, savings that can be put towards compensating people.
This is particularly attractive for low value claims where the costs exceed the value of the claim.
On the point of excessive claims for costs the other side of the story can be found here.
http://www.litigationfutures.com/news/firms-hit-ba...
The vast majority of professional negligence cases settle before trial, or the only issue at trial is the amount of compensation, liability having been conceded. The media reports stuff that goes wrong, as "things go as they are supposed to" does not make good copy, and fails to feed the OP's need to feel permanently outraged.
blueg33 said:
Breadvan72 said:
Your definition is incorrect. Negligence means failure to adhere to the standard of care that is contextually appropriate.
Why should there be an entitlement to compensation for things turning out badly but without negligence? If I am driving carefully but still crash my car because a deer makes me swerve, or the wind blows a tree branch into the road, should I be compensated? If a medical procedure with variable possible outcomes turns out badly, having been competently performed, why should I be compensated? Who should pay?
You should to my mind be compensated if the proceedure was not competantly performed, but as you say if [erformed competantly and the outcome is variable then no compensation. The problem is that you end up in cort trying to establish whether the proceedure was performed competently, this is when the legal bills rack up. I suspect that many cases though are settled before they reach that point, its the exceptions that make headlines.Why should there be an entitlement to compensation for things turning out badly but without negligence? If I am driving carefully but still crash my car because a deer makes me swerve, or the wind blows a tree branch into the road, should I be compensated? If a medical procedure with variable possible outcomes turns out badly, having been competently performed, why should I be compensated? Who should pay?
The accountants are deciding when to fight and when to pay out for claims which do not meet a financially viable threshold for defence. This is allowing a very large number of claims to go unchallenged. Rather like the car model
The legal interference is making inroads into the clinical decision. In other words it is easier for a surgeon to become risk adverse as its easier to defend.
When I have a patient who understands the risks but would like to try surgery which has a higher risk attached, it can sometimes be difficulty to find someone willing to do it. This is because they have one eye on their past performance, after finding its used against them in any legal proceedings.
Given that twenty years ago it was noteworth in conversation if a consultant had any pending litigation against them, and now the reverse is true.
The theme through this thread is that lawyers improve performance anywhere they try to make money, and that justifies their interference. I would suggest the reverse is true.
Who is to blame for compensation culture is a chicken and egg question. It's partly the wrong sort of lawyers, but partly also their greedy clients and the media that fuels their expectations by promoting a blame culture. Look at all those TV shows naming and shaming, and the game show formats that are all about public humiliation of contestants.
This sub forum regularly throws up examples of PH'ers who appear to have a culturally embedded belief that they have an entitlement to compo, unprompted by any lawyer, often in relation to matters that most of us would shrug off as stuff that happens.
This sub forum regularly throws up examples of PH'ers who appear to have a culturally embedded belief that they have an entitlement to compo, unprompted by any lawyer, often in relation to matters that most of us would shrug off as stuff that happens.
julian64 said:
The theme through this thread is that lawyers improve performance anywhere they try to make money, and that justifies their interference. I would suggest the reverse is true.
I don't think that is quite true. But what is true is that holding people accountable and responsible does mean they take more care. If there were no ramifications to negligent actions then (a) there has been a failure of justice from the perspective of the injured party and (b) where is the incentive to change processes, rules and actions?It has always been the case that sometimes, for minor claims, it is cheaper to pay out early than fight. Whilst of course that can encourage a small number of fraudulent cases, to do otherwise makes no sense (unless you believe that lawyers should work for free or that claimants shouldn't be entitled to retain the compensation they are awarded).
As to whether financial compensation is appropriate in cases where there has been no financial loss, that's a different question. But as it stands there is no other way to reflect injury than through payment, much as those who've had the wrong leg cut off may wish to do the same to the negligent surgeon.
Breadvan72 said:
Who is to blame for compensation culture is a chicken and egg question. It's partly the wrong sort of lawyers, but partly also their greedy clients and the media that fuels their expectations by promoting a blame culture. Look at all those TV shows naming and shaming, and the game show formats that are all about public humiliation of contestants.
This sub forum regularly throws up examples of PH'ers who appear to have a culturally embedded belief that they have an entitlement to compo, unprompted by any lawyer, often in relation to matters that most of us would shrug off as stuff that happens.
undoubtedly agreeThis sub forum regularly throws up examples of PH'ers who appear to have a culturally embedded belief that they have an entitlement to compo, unprompted by any lawyer, often in relation to matters that most of us would shrug off as stuff that happens.
PurpleMoonlight said:
These are civil compensation claims. There is no right to legal representation.
If the compensation is minimal then there is even more need to limit the reclaimable costs to discourage people from making speculative claims. It is no secret that many insurers will cough up fairly quickly in some instances to save costs, and there would appear to be some lawyers that are milking it for all its worth.
At the end of the day, it is the consumer/tax payer that pays for it one way or another.
The consumer/tax payer pays for absolutely everything one way or another!If the compensation is minimal then there is even more need to limit the reclaimable costs to discourage people from making speculative claims. It is no secret that many insurers will cough up fairly quickly in some instances to save costs, and there would appear to be some lawyers that are milking it for all its worth.
At the end of the day, it is the consumer/tax payer that pays for it one way or another.
Edited by PurpleMoonlight on Monday 7th April 19:41
Small value claims are already dealt with by way of the small claims court for claims under £10,000, where there are very limited costs that can be recovered.
Costs can also be controlled by making offers to settle at an early stage (which is encouraged and can be a very successful tactic).
As I said, there are some claims that are of modest value but which are important and complex (it's not always about the money). If you suggest that these claims should only be pursued by those willing to fund their own costs regardless of outcome, surely if they are correct they should have their costs refunded because they shouldn't have to incurred them in the first place? On the flip side, would you be happy to be significantly out of pocket with regards to defending a case which you had no choice but to fight, but that you won? How is that possibly a sensible outcome?
The current position (generally) is that the loser pays. Sometimes the costs dwarf the value of the claim - that is an outcome of complex, lenghty proceedings and is a fact of life.
Clinical negligence is the consequence of policy decisions, not a fact of life. Settling to keep costs down misses the point that the flaw in the system is needing to prove negligence to receive compensation. The limit for the small claims track is £1000, not £10000.
Edited by Zeeky on Tuesday 8th April 09:37
Gassing Station | Speed, Plod & the Law | Top of Page | What's New | My Stuff