The Association of Personal Injury (APIL) has called for a “predictable claim process” for clinical negligence actions if the government goes ahead with its plan to impose fixed costs for cases worth up to £25,000.
Responding to the Department of Health (DoH) consultation on fixed costs, which closes today, APIL said part of the process should involve NHS Resolution, formerly the NHS Litigation Authority, admitting liability in full.
“It is pointless to impose fixed costs for clinical negligence work without fixing the process first,” Neil Sugarman, president of APIL, said.
“A fixed, predictable claims process needs to be developed, rather than imposing fixed costs on the existing, dysfunctional system.
“Taking an axe to how much the Department of Health pays does nothing to tackle the factors which drive costs, such as the ludicrously long waiting times for the recovery of medical records, or arduous expert reports.
“We propose that a claimant should submit an abbreviated expert report early on, for example, so that NHS Resolution as it is now called can decide early on whether to make an offer to settle.”
APIL argued in its response that cases involving fatalities, claimants with a short life expectancy, potential breaches of the Human Rights Act and cases with multiple claimants or defendants should be excluded from the fixed-costs regime.
Mr Sugarman added that for the DoH, as a “negligent wrong-doer”, to change the way in which injured people can succeed and the costs they can recover, was “like a criminal dictating the length of his sentence.
Meanwhile, clinical negligence specialists Hodge Jones & Allen called for fixed costs to be put on hold until an independent review of LASPO had been carried out and the findings of the National Audit Office investigation of NHS Resolution had been published.
Agata Usewicz, head of medical negligence at the law firm, said: “As a consequence of the Jackson reforms, lawyers’ fees are already tightly controlled, budgeted, 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.”
In its response to the consultation, Hodge Jones & Allen agreed with APIL that only “straightforward cases” would be viable under fixed fees, with no more than one defendant, one expert report and two witness statements, along with an admission of liability.
The firm said that, as well as all fatalities, people with disabilities and mental health issues, the over 65s and prisoners should be exempted from fixed costs.
It called for stronger sanctions to reduce delays by NHS Resolution, including having to leave the fixed costs system and costs penalties.
Ms Usewicz added: “Aside from the impact on individuals, there will 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.”
However, the Medical Protection Society (MPS), which argued strongly last month for the government to be more “bold” and include cases worth up to £250,000 in its plans, said fixed costs were backed by a large majority of the public.
The MPS said a survey of over 2,000 adults carried out by YouGov on its behalf in February showed that 81% supported fixed costs for clinical negligence lawyers.
A similar majority, 82% said they did not agree that lawyers should receive more in fees that patients did in compensation.
Emma Hallinan, director of claims at MPS, added: “At a time when the NHS is under increasing financial pressure, it is not surprising that so many members of the public want to see more done to tackle legal costs and keep more money in the NHS for frontline care.”