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The complex reasons why a claimant takes legal action - Ali Malsher, Anthony Gold Solicitors

14/01/19. Reading the traditional media, it appears, clinical negligence claimants are motivated by finance only. Yet this doesn’t equate with the experience of those who work in this area of law. The reasons claimants start the legal process are complex but there is a relationship between response of the health provider to adverse events and litigation.

Recently NHS Resolution undertook a survey looking at the behavioural insights into patient motivation. Depressingly almost two thirds of those who responded felt that they had received no explanation as to why an incident had occurred.

Many people do not pursue the complaints procedure but of those that did only about half were actually invited to a meeting to talk about what had happened. In fact the majority of people did not think that the health care provider actually took any actions to investigate and less than a 10th thought that any actions that had been recommended would prevent a recurrence.

These are all statistics which anecdotally would reflect the experience of clinical negligence practitioners. Many people who investigate the possibility of a claim have had no proper investigation of events or explanations of outcomes. They are frustrated by the lack of adequate response on all fronts.

Clearly there are many claimants who simply need to take legal action. They may have ongoing and significant needs or they have suffered substantial losses. They often cannot afford to provide what is needed or the state provision is woefully inadequate. These are the simple practical realities of life.

Others, fewer, are motivated partially as a result of a need for perceived justice but many claimants retain a sense of unease about taking action against the NHS in particular. Few take the decision lightly. At best it is a difficult , distressing process and highly intrusive.

This survey reinforces what claimant lawyers and patient organisations have thought for many years. A poor response at the time of an adverse event, an inadequate complaint procedure and a deficient apology letter are factors which are more likely to lead a claimant to consider litigation.

Some claimants will always need and want to take legal action . However a more empathetic, efficient and open response to individuals who have suffered an adverse event may encourage claimants consider other options. Understanding why claimants choose to take action is important to all solicitors. Although the legal process can be limited in its scope , managing expectations is part of the lawyer’s role and understanding the reason why a claimant decides to take action is often vital to building an effective relationship with the client.

This survey gives an insight into some of the many factors leading to legal action . Many of the responses to the survey were from claimants whose events pre dated the Duty of Candour introduced in November 2014. However it remains to be seen whether this has made a significant difference and those factors identified have not disappeared. Therefore reaction to an adverse event through the whole process remains a fundamental factor in litigation and should be an important consideration for lawyers on both sides.

Ali Malsher
Anthony Gold Solicitors

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