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The Government should think again on fixed fees in clinical negligence cases argues Nina Ali, partner, Hodge Jones & Allen

This summer the Department of Health announced proposals to fix costs in clinical negligence cases worth below £250,000 and, in doing so, raised grave concerns that many victims of medical negligence could be left without any means of obtaining compensation for their injuries.

A consultation into the proposals is expected imminently. Organisations across the board are calling on the government to carefully consider the impact the plans could have on the ability of those who have suffered life changing injuries or bereavements to gain redress or act to ensure action is taken to prevent future negligence.

Whilst capping fees might seem like a quick win for a government intent on cutting costs, the current proposals fail to address that it is the negligent actions of the NHS that drive up the NHS’s litigation budget. They do nothing to deal with the underlying problems behind the rising number of medical accidents.

As they currently stand, the proposals demonstrate a lack of knowledge or understanding about how clinical negligence cases are actually run. The Government’s plan is to limit legal costs and ensure that lawyer’s fees reflect a percentage of the compensation received by a patient so that it is proportionate. They contest that there is no limit on fees at present and appear to work on the basis that all low value cases are, by their nature, less complex and therefore less expensive to run.

The reality is that if you take a look at any claimant clinical negligence practice, you will see the in-depth investigation that is so often necessary when acting in clinical negligence cases and see the hurdles that must be overcome in order to bring a successful action. Unlike a large proportion of personal injury cases, a claim with relatively low value does not necessarily equate with low costs. “Smaller” cases are often just as complex and sometimes more so than high value cases.

Establishing medical negligence is difficult and time consuming. Further, it is almost always the case that independent expert evidence (sometimes in a number of disciplines) is needed. This appears to have been overlooked by the Department of Health, as has another important point – virtually all medical negligence cases are brought by virtue of a conditional fee agreement (no win, no fee). The lawyers are therefore only paid if the case succeeds. If the case is unsuccessful, the lawyer, who may have worked for two or three years on the same case, gets paid nothing.

Costs budgeting

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. The idea that lawyers can charge whatever they want is quite simply wrong.

This is evidenced by recent cases that have seen judges reduce claimant costs if they believe the sums requested are not justified. In Rallison v North West London Hospitals, Mr Justice Garnham sliced more than £250,000 from interim costs, arguing that the total costs were not proportionate to the complexity of the case, which he regarded as a fairly typical clinical negligence case. This followed costs judge, Master O’Hare’s decision relating to a claim against Guy’s and St Thomas’ NHS Foundation Trust in November, which saw him reduce a claimant’s bill by more than £20,000 after ruling the work could have been done by a cheaper lawyer.

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.

Role of NHSLA in driving up costs

The proposals also fail to consider the role of the NHSLA in driving up costs. 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.

A real culture change at the NHSLA and the NHS itself is needed if the issue of rising litigation costs is to be tackled.

Litigation as a force for good

The danger of these proposals is that by bringing in fixed costs, lawyers will simply not be able to take on low value cases. Inevitably many will be denied access to justice, with those most affected being the vulnerable such as psychiatric patients, the elderly and disabled, whose cases can be the most complex and challenging. These are areas where lawyers and the judiciary successfully intervene to protect patient safety.

It is not just the erosion of justice that is of concern; it is also the long term impact on patient safety that should worry the Government and all of us. 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.

In many of our cases we see first-hand how the investigative process and the litigation that follows lead to hospital systems being reviewed and new protocols and systems being introduced to prevent such events in the future.

On occasion, the litigation process uncovers the continual poor practice of specific individuals, such as surgeons. This may then be referred to the General Medical Council (GMC) or action taken by the Trust or organisation that employs him/her. Whilst the GMC is responsible for ensuring doctors’ fitness to practice, it is questionable whether without the litigation process these ‘rogue’ practitioners would so often be identified, let alone sanctioned.

Where deaths occur, it can be lawyers who push for inquests to investigate what happened. The HJA team have advised on cases where, without intervention, the inquest would not have happened at all and yet the outcome was a finding of neglect by the Coroner.

Legal representation at inquests would be in jeopardy under the new proposals. In most circumstances the cost of representation in these important cases 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 those 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.

In one of our most recent cases concerning the death of a baby, the inquest highlighted significant failings by the hospital and in the training of junior midwives. As a result the coroner said that he would meet with the chief executive of the hospital to ensure safe procedures were being adhered to and would be writing to the body responsible for training student midwives to consider whether that hospital was an appropriate place to train students given the series of failings identified.

In another recent inquest we acted on, examining the death of an elderly man, the investigation found that he died as a result of a stroke which was caused by a mistake in inserting feeding tubes into the patient’s neck following an operation. The Coroner identified major problems with the supervision of junior doctors in the hospital, which is now seeking to make the necessary changes.

Without legal redress there are grave concerns that poor practice will not be addressed. Tackling this and providing training where it is needed will save the NHS money in the long term. Perversely, costs could increase as 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.

At present there is limited detail about the proposals. A more in-depth explanation is expected before the end of the year. I call on the Government to stop and, rather than rushing into the introduction of a new scheme, take time to understand how clinical negligence claims work. I ask that they conduct a robust and transparent review into the impact that LASPO is already having on fees, and take into account the role of litigation in driving changes in training, policy and guidance to practitioners ensuring best practice.

Without access to justice, patients will ultimately suffer which is why at Hodge Jones and Allen we have written to MPs in England and Wales, including the health minister Ben Gummer, to express our considerable concerns about the impact these proposals would have.

This article first appeared in The Barrister.