Government Response on Fixing Legal Costs in Medical Negligence Claims
The government has today (15 February 2018) announced it is to continue with its plans to limit recoverable costs on medical negligence claims worth less than £25,000.
The Department of Health and Social Care said the Secretary of State for Health has indicated it will set up a working group to develop a ‘bespoke process for clinical negligence claims’. This will include fixed recoverable legal costs. It is expected that the working group should publish its recommendations in the autumn.
Law Society president Joe Egan said:
‘While the Law Society does not oppose fixed recoverable costs in principle, the real savings for the NHS will come from learning from its mistakes and increasing patient safety.
‘Cases which are not necessarily the highest in value can still be complex and challenging. Fixing costs could end up limiting the time specialist solicitors can spend understanding the details of an incident in care. Patients must not be denied the legal help they need to get the full compensation they are entitled to in law.’
Egan said that ministers have set it a ‘worryingly short’ timetable. ‘It is crucial that adequate time is taken to get this process right, so that access to justice is not harmed in any way.’
Association of Personal Injury Lawyers president Brett Dixon commented:
“We have advised the Government that there is scope to streamline the procedures and cost involved in lower NHS value claims, but that is only part of the story,” said
“So-called NHS ‘never events’ – injuries which are serious and largely preventable – have stayed at the same level in the past two years”
“Analysis of information provided by NHS Resolution… shows that failure of maternity care represented a quarter of the damages paid out to injured patients in 2016/17. Failure in maternity care has been identified for years as a major problem for the NHS yet little seems to have changed.”
“The urge to streamline costs and procedures must go hand in hand with a real, systemic, consistent reduction in avoidable injury,”
“Only then will the NHS become more efficient, and only then will we see an end to the needless suffering of patients.”
Mark Thompson, Senior Solicitor at Thompson & Co. solicitors in Sunderland who specialise in medical negligence claims responded cautiously to the news:
“Before looking to restrict the amount of legal costs available to investigate medical negligence claims the government should first of all take steps to reduce the numbers of injuries being caused by negligent medical treatment.
Compensation and legal costs are only paid where either the NHS or medical practitioner accepts that treatment has been negligent resulting in harm to the patient or where a Judge has decided on the evidence that harm has been caused to a patient by negligent treatment. The most effective way to avoid costs in this area is to reduce the amount of negligent treatment.
The amount of legal costs is already limited to those costs that are proportionate to the amount of compensation recovered and the issues involved in the claim. Even where a claim is successful, the amount of compensation and costs that is paid by the NHS or insurer must either be agreed by the NHS / insurer as being reasonable or will be assessed as being reasonable by the Court.
The amount of work required to investigate and pursue a claim for medical negligence is not necessarily dependent on the amount of compensation sought. Even Medical Negligence claims worth only a few thousand pounds can be extremely complex and difficult to prove. Any fixed costs scheme must be set at a level that fairly reflects the amount of work required to prove a claim.
How This Impacts Medical Negligence Claims
There is a real risk that if the amount of fixed recoverable costs is set too low solicitors will be unable to take on otherwise meritorious medical negligence claims.
Patients with claims worth up to £25,000 which would fall within the proposals for a fixed costs scheme may find they are unable to find a solicitor to represent them.
Unless they are excluded from the scheme, this would include claims for the deaths of elderly patients or children which are often of low financial value
If patients are unable to obtain legal advice and representation then many cases of medical negligence may go unreported and the opportunity to learn from mistakes will have been lost. This may have the knock on effect of risking patient safety. “