Clampdown on Medical Negligence Legal Costs

The Department of Health announced last week their intention to limit costs for medical negligence matters for claims worth less than £100,000. The plan is to reduce the burden on the NHS budget. Limits have already been introduced for other areas of personal injury such as for road traffic accidents and employers liability.

So what does this mean for a Claimant and for a Claimant Solicitor? Whilst it would appear to most, to be a reasonable approach for costs to be proportionate to the level of compensation a Claimant receives; it is not always a realistic approach. The value of the claim can often be irrelevant and bear no reflection on the complexity of a case. It may be that fixed fees can be adopted in clinical negligence matters. However, recent changes to both personal injury and clinical negligence matters have weighed heavily on the Claimant, with the Defendant being left relatively unscathed.

Unburdening the NHS is an important issue, but when looking to cut costs a fair approach much be applied, including scrutinising the Defendant's own costs. It is often forgotten that it is not only Claimant's costs that taken out of the NHS's budget. The NHS themselves have to pay their own panel of representatives and solicitors. The NHS's own conduct must also come under scrutiny.

We have seen in a number of our own cases, costs increasing unnecessarily when the NHS fails to deal with a valid claim in an appropriate and timely manner. The failure of the NHS, and other medical providers, to admit fault in clear-cut cases is grossly unfair on the Claimant, and can often be to blame for excessive bills. It could be argued that there is nothing wrong with the current system. Costs are already appropriately and carefully managed by the Courts as the case progresses as a result of recent reforms and where any excessive fees are claimed, these are subject to detailed assessment by an independent judge. Medical negligence matters are often complex and require experienced lawyers to properly investigate. It is estimated that experienced clinical negligence lawyers advise about 85% of Claimant's not to progress with a claim because they will have difficulty proving their case to a court, or their aims can be better achieved elsewhere (for instance through the complaint process). This is certainly our experience at Wake Smith.

Clinical negligence cases can often be very expensive cases to run which often leaves the solicitor, or in some cases the Claimant themselves, out of pocket for a considerable amount of time before a case reaches a resolution. The consequence will be, it will no longer be cost effective for a solicitor to run a lower value claim. Therefore, a patient who has suffered an injury as a result of negligence, would be denied access to justice and in a world where legal aid is no longer available in this area of law, only those with financial means to pursue a claim will be able to do so.

Our concern is that this review will effectively be conducted by the Government and NHS. Whilst we do not object to a review of the system, we at Wake Smith support a review by an independent body. Costs should be assessed and fixed taking into account the conduct of both parties, the nature and complexity of the case and the time and money spent to reach a conclusion. We would argue that both Claimant and Defendant costs must be scrutinised in order to reach a fair approach for both sides. Once a system is in place, it need to be annually reviewed.

For further information please contact Kate Lax on 0114 266 6660 or email kate.lax@wake-smith.com

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