FOLLOWING Sally Beck’s article in TCW Defending Freedom on Monday, there has been much anger expressed over the delays by the NHS Business Services Authority (NHSBSA) in paying compensation to those harmed or bereaved by the Covid vaccines.
Such anger is understandable and may I state from the outset that I too, like many others, am angry about the damage caused by these largely untried and untested vaccines. Those damaged deserve compensation.
However, I have some experience and understanding of the labyrinthine NHS compensation system, although from a clinical negligence point of view rather than relating to vaccine damage.
I can tell you that it is a very murky business, costing us taxpayers billions a year (£3.6billion in 2018-2019 and rising year on year). As they say, if you want an answer, follow the money.
To gain compensation from the NHS, there must be a proven ‘breach of duty of care’ by a medical professional which has resulted in harm, physical and/or psychological, which may be coupled with financial harm.
Clinical negligence claims are managed by NHS Resolution, and through them handled by a series of specialist legal firms throughout the country (I will call these the Resolution lawyers for convenience).
They have extensive experience in what is required to dig out and pull together all the relevant information in an appropriate legal form.
On the claimant’s side there are myriad legal firms specialising in medical negligence, all keen to cash in on a lucrative market, although any jobbing solicitor may, from time to time, have a go (and without relevant experience they usually do it badly – so if you want to sue the NHS, don’t go the corner shop solicitor).
Perversely, the Resolution lawyers are poorly paid – Resolution is very parsimonious – and few lawyers are attracted to this work.
So let’s begin with the ‘simple’. A claim comes in and after initial investigation, usually involving an external medical expert review, it is clear that there has been a significant failure of care resulting in harm or death whether by error, negligence or whatever.
In consequence, the Resolution lawyers will hold up their hands and admit liability. Then the fun starts. A decision must be made as to the seriousness of the effect on the patient: How has their lifestyle been affected, ongoing pain and suffering, care requirements, possible shortening of life, etc? These decisions inform the appropriate level of compensation.
But it is human nature that in such a situation there is the temptation to screw every penny possible out of the system, and sharp lawyers will use every trick (sorry, means) in the book to get the maximum payment for their client and themselves.
In practice this means that further expert opinions will need to be obtained by both sides from case notes and clinical examination of the claimant.
A complex case may require experts from a number of different specialities. All this takes a considerable amount of time and money, which goes to the medical experts and contributes to the mounting legal costs of both parties.
In straightforward cases, compensation may be agreed within a reasonable time frame. The average settlement in the NHS is around £50,000 – although this is hugely variable.
Complex and disputed cases may take years. In most, a settlement is reached by agreement between the parties, and for very serious cases the figure may be for millions of pounds. The claimant’s lawyers, of course, will make huge charges and large profits.
When agreement cannot be reached, the parties have to go to court. This usually occurs only when the Resolution lawyers believe that the amount claimed is unreasonable or unjustified. But this is risky for both sides and adds significant further delay and, of course, costs.
That is how a ‘simple’ case might work out and how the costs and delays mount up. But there are other scenarios to be considered, such as those where liability is not accepted by the Resolution lawyers.
In such cases, the process is even more complicated (and expensive) with both sides obtaining expert opinions. The Resolution lawyers will take witness statements from the professionals involved, which can be very time-consuming and many doctors, for obvious reasons, are rather unwilling to co-operate (or they may have moved, retired or died).
If it is concluded that the claim may be challenged, all this information must be fed back to the claimant’s solicitors. At this point, the case will either be dropped or proceed to mediation of some sort, and barristers may be instructed for advice or to present the case in court. But even if the case is dropped at this stage, there will still be very significant legal costs payable – ultimately, by you and me.
This is a thumbnail sketch of a complex and highly unsatisfactory process. I stated at the start that it is very murky with many perverse incentives, although many claims are clearly genuine and deserving.
From Sally Beck’s article, we learn that the system set up for vaccine compensation by the NHSBSA differs by replacing the Resolution lawyers with case workers. Some might regard this as positive.
Their responsibilities include: Preparing claims for assessment ‘by an independent medical assessor’ (sic), obtaining medical records and other relevant information, communication with claimants, and ensuring the claims are processed as quickly as possible. This is drawn from the NHSBSA response to Sally Beck.
All this for £23,000 a year!
I am in despair. The compensation system for negligence is bad enough, expensive and prolonged. But this cobbled-together ‘programme’ has no chance of progressing anything if staffed by completely inexperienced low-grade administrators who have no understanding whatsoever of the complexities involved.
How on Earth are they going to have the ability to ‘prepare claims for assessment’ when, in negligence cases, it takes the work of a highly-experienced lawyer to get it right, not to mention the time and costs? And what will they do once the ferocious negligence legal firms get stuck in, which they will? They will have no chance.
There seems little doubt that the assessment of vaccine injuries will be very complex and will require not just ‘an independent medical assessor’, but a whole bunch of them with varying skills and specialities, and the assessors themselves are not going to spend hours doing the basic legwork in preparing a case. In some cases, determining genuine vaccine injury may take years.
One thing I am sure of is that if the vaccine compensation bandwagon starts to roll in earnest, there will be a huge rush of claims, many of which will not be genuine.
Once the smell of money is in the air, it attracts the wrong sort of people, and in our victim culture there will be no shortage of would-be vaccine victims and these will overwhelm the system. This is sad since it negatively affects the very genuine cases which deserve appropriate and prompt compensation.
However, I have been directed to the Government website on vaccine damage which, I admit, I had not noticed. But don’t get too excited – it is very thin.
‘If you’re severely disabled as a result of vaccination against certain diseases you could get a one-off tax-free payment of £120,000,’ it tells us. ‘Disablement is worked out as a percentage, and severe disablement means at least 60 per cent disabled. This could be a mental or physical disablement, based on medical evidence.’
So if you are rendered quadriplegic by medical negligence and require 24-hour care you will get, say, £10million. But if you are rendered brain dead by a vaccine, you get a measly £120,000. And, by the way, this may affect your benefit payments. However. there is still an option to take legal action if you wish.
So anyone holding out for vaccine damage compensation – don’t hold your breath.
