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Ten reasons why fixed costs in medical negligence cases is wrong

Health Minister Ben Gummer has said proposals to fix costs in medical negligence cases worth less than £250,000 will come into effect on 1st October, despite no consultation yet being opened.

At Hodge Jones & Allen we believe the government should think again given the impact fixed costs will have on vulnerable people. There are 10 very good reasons why these proposals should be halted:

1. Many victims of medical negligence could be left without any means of obtaining compensation for injuries caused through no fault of their own

Lawyers will simply not be able to take on low value cases and therefore those who have suffered life changing injuries or bereavements due to the negligence of the NHS or private providers, will be unable to gain redress or act to ensure action is taken to prevent future negligence.

2. “Smaller” low value cases are often just as complex and sometimes more so than high value cases

The proposals, as they currently stand, demonstrate a lack of knowledge or understanding about how clinical negligence cases are actually run. A great deal of time is spent investigating claims made by patients who often lack full knowledge of what has happened to them.

There are significant hurdles that must be overcome in order to bring a successful action and victims have to bear the full burden of proving both breach of duty and causation. Unlike a large proportion of personal injury cases, a claim with relatively low value does not necessarily equate with low costs.

3. The proposals work on the assumption that there is currently no limit on fees, when in fact they are tightly controlled

The government should not be introducing a fixed costs regime at a time when the impact of the Jackson reforms is still to be assessed. As a consequence of the Jackson reforms, lawyers’ fees are already tightly controlled, capped and limited. Costs already have to be “reasonable and proportionate” before they are paid by the insurer or NHS and the Courts rightly already hold the power to reduce any bill found to be excessive.
To seek to introduce further and somewhat draconian changes without waiting to see whether the introduction of costs budgeting will lead to the necessary improvement must, from any angle, be considered to be somewhat misguided and misconceived.

4. The proposals do nothing to tackle the underlying problems behind the rising number of medical accidents

The NHS only pays costs to claimants when it has negligently injured a patient and either loses or believes it will lose the ensuing claim for compensation. The government should be looking at remedying underlying causes of negligence by, for example, providing proper, more regular training, if they want to reduce the negligence bill

5. The role of the NHSLA in driving up costs needs greater scrutiny

Often legal bills are massively increased as a result of the NHS’s failure to admit liability at an early stage. In a substantive action, much of the work carried out by claimant’s solicitors becomes necessary solely due to the manner in which the defendant conducts its case.

Delays caused by the defendants and NHSLA can be unrelenting and are hugely distressing to clients. It should also be noted that the defendant’s solicitors are not acting on CFAs and are therefore paid regardless of the result. Consequently they have no incentive to deal with work efficiently or progress claims fairly and appropriately.

6. The most vulnerable in society would suffer

Inevitably these proposals would mean many would be denied access to justice and those most affected would be the vulnerable such as psychiatric patients, the elderly and disabled, whose cases can be the most complex and challenging.

7. There would be a long-term impact on patient safety due to important cases not being brought

There is a great deal of evidence to suggest litigation can drive the development of better practice, hold institutions accountable and be a force for change. It is not just about compensation that helps to rebuild lives; the process can identify systemic failings, ensure that sanctions are taken against poor and negligent doctors, promote early diagnosis and lead to significant changes and improvements in healthcare. If important cases are not brought, patient safety will ultimately suffer.

8. Legal representation at inquests would be in jeopardy

In most circumstances the cost of representation at inquests is recoverable where there is a successful clinical negligence claim. This is likely to change with fixed fees, curtailing solicitors from obtaining crucial evidence for a claim in addition to being part of the inquiry into the cause of a death.

In these circumstances, families and friends of the deceased could be deprived of much needed support as well as help changing systems, which is primarily what families want.

9. There has not been time for a meaningful consultation on the implications and practicalities of a fixed fees regime

The proposals are already tabled to be implemented in October this year, despite the fact the consultation has not yet begun. It appears that the government is intent on introducing a fixed-costs regime come what may and that the long-promised consultation will be nothing more than an exercise in how a fixed-costs regime should work, rather than considering how clinical negligence cases are run and the drivers behind legal costs in such cases.

Furthermore, the consultation process being run by the Department of Health (DoH) which is obviously conflicted. Given that the DoH is the negligent party when a claimant pursues a successful clinical negligence claim then, it should not be imposing a fixed costs regime on its opponents in the litigation.

10. A rise in litigants in person could actually jeopardise any savings realised

Specialist solicitors screen most cases out, identifying when there is legal negligence as opposed to a complaint. The medical profession could be swamped by complaints that will have to be investigated or pursued either by less specialist lawyers or potentially by injured patients who, unable to obtain legal representation, will seek to represent themselves.