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The legal costs of clinical negligence claims : should they be fixed?

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    With increasing discussion in respect of clinical negligence claims being subject to fixed fees, this article considers the impact this will have on those who have suffered as a result of medical negligence.

    By Richard Coleman

The Department of Health is presently consulting about imposing a limit on the amount of legal costs which can be claimed in clinical negligence cases.  This would mean that there was a limit on the amount of work which Solicitors could be paid to do to investigate such claims on behalf of patients.

Although previously it was assumed that clinical negligence cases worth up to £100,000 damages would be subject to fixed costs, the government are now said to be considering whether this should be increased to £250,000 damages, which would bring into scope a huge proportion of claims, and affect a lot of patients who have suffered life changing injuries.

A Department of Health document suggested that the increasing the fixed recoverable costs to £250,000 damages could save over £100 million.

It is proposed that the new fixed recoverable costs would apply to all cases, in which the letter of claim is sent on or after 1 October, 2016, and could therefore affect a huge number of people bringing such claims in the very near future.

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I recently read an article written by Catherine Dixon, Chief Executive of the Law Society (and also former CEO of the NHS Litigation Authority – who manage all claims involving NHS Trusts) who encapsulates the position brilliantly.

Although the primary reason for an introduction of a fixed fee structure is to reduce costs paid to Claimant Solicitors, Catherine Dixon’s view is the focus should be on improving the care provided to patients.

In the article Ms Dixon explains that in 2014, the NHSLA spent almost half a billion pounds on medical negligence claims relating to children who suffered brain injury during birth. In light of this, she believes the focus should be shifted to ensure relevant steps are taken to stop such incidents occurring by providing better training, adequate staffing levels, effective use of technology and robust procedures rather than targeting Claimant solicitor costs which will only save a tiny proportion of the amount paid out in compensation.

In effect, fixing costs will restrict those patients who have suffered avoidable injury and financial loss from access to justice for those injuries as they may not be able to find a Solicitor to act for them.

If specialist solicitors stop offering their services there are two inevitable outcomes for the patient. The first will be an increase in the number of claims management service companies who will offer patients their services at a cut price. However, as seen in the personal injury field, this could lead to a range of absurd and unorganised claims. The second and more important issue is this will restrict an injured patient’s ability to bring a claim. Arguably, will this not be a breach of the Human Rights Act 1998, Article 6 (1) (European Convention on Human Rights) as in effect the individual will not have access to legal advice and representation, and therefore not have a fair hearing?

On the other hand, the NHSLA will argue that Claimant costs are not “proportionate”, e.g. a claim worth £10,000 can sometimes have costs of over £100,000 and therefore grossly excessive costs are being obtained by Claimant Solicitors.

However, the reality is that clinical negligence law is a very complex area which requires a great deal of in depth investigation and extensive evidence, and you cannot accurately fix the level of costs required just by reference to the final compensation paid.  Unfortunately, in many cases there is a failure by Defendants to admit liability at an earlier stage which is therefore leading to Claimant solicitors having to obtain extensive evidence and continue through the Court, until an admission of liability is made. In effect it is the Defendant/NHSLA who have a hand in increasing costs in a clinical negligence claim by routinely fighting meritorious claims.

How are costs presently managed?

Cost judges are already dealing with managing the level of costs in clinical negligence in a very constructive manner.  This is both through the use of cost budgets which each party has to produce early on setting out what the likely costs will be and the Judge will then determine what is reasonable for the case; and also that costs are then subject to assessment at the conclusion of the claim and the Judge will only again order the Defendant to pay what is reasonable.

Summary

I think it is imperative to remember that clinical negligence claims are brought by individuals who have suffered an injury by no fault of their own, and although compensation cannot make up for the injury, it can assist with vital rehabilitation, recovery and ongoing care.  By introducing fixed costs, this will limit a patients ability to be compensated for these injuries and therefore in my view costs should not be fixed.  There should instead be an increased focus on improving the standard of medical treatment and further where an injury has been caused due to negligence, ensuring an early admission of liability is provided.

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