The High Cost of Clinical Negligence Claims

By John Tingle

In the UK, the Department of Health (DH) have just published a consultation paper on introducing fixed recoverable costs in lower value clinical negligence claims. The document contains some controversial proposals which many claimant, patient lawyers are very concerned about. They feel the proposals will make it much harder for patients with lower value claims to find a solicitor to fight their case .The publication of the consultation paper comes in the wake of criticism that some clinical negligence claimant lawyers, solicitor firms , make excessive and unreasonable costs demands. The NHS LA (The National Health Service Litigation Authority) which manages negligence and other claims against the NHS in England states:

“Claimant costs for lower value claims are disproportionate and excessive. For claims where compensation is less than £10,000, claimant lawyers recover almost three times more in costs on average.”(p.10)

The DH Consultation Paper begins by stating the annual cost of clinical negligence in the NHS. It has risen from £1.2bn in 2014/15 to £1.5bn in 2015/2016.Legal costs were 34% of the 2015/16 expenditure.The consultation paper states that the current system of claims resolution is often lengthy and adversarial. This creates what can be termed a dual problem. Delaying possible learning of lessons from incidents and also escalating the costs of litigation when claims are brought.

This is particularly the case for lower value claims, where recoverable costs often reach two to three times the value of damages actually awarded. In 2015/16, claimant recoverable costs were 220% of damages awarded in claims between £1,000 and £25,000.The consultation paper  states that most parties agree that this is disproportionately high and that the time taken to settle are not in the best interests of either the patient or the taxpayer.

There is a proposal for a mandatory scheme of fixed recoverable legal costs for lower value clinical negligence claims.The proposed scheme would apply to claims above £1000 and up to £25,000.The Government hope that this proposal will contribute to a sustained focus on improving patient safety through learning of lessons and transparency in the NHS.

AvMA, the charity for patient safety and justice, feels that the consultation paper proposals,” lack compassion and understanding of the plight of people affected by clinical negligence and would harm patient safety as well as access to justice”

They point out that legal costs are often high because the case has been unreasonably defended and settlement delayed  by the  defence  side. In the rare event where a solicitor acting for the claimant patient submits unreasonable costs, the court can and does refuse them. They also point out that the NHS LA does challenge costs where they think that they are unreasonable and excessive. Lower value claims can also involve as much work as more complex cases. If these lower value cases take a long time to settle then law firms will not be able to take on many more and will have to turn these type of cases away.

‘Intelligent Transparency’ and a ‘Patient Focused NHS’ are the current NHS aspirational and inspirational watchwords, these new consultation proposals do not seem to accord very much with these ideals if they operate to impede an injured patient’s access to civil justice.

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