Screening of medical negligence cases by lawyers could become an “unaffordable luxury” if fees are too low, meaning more are simply issued, the Association of Personal Injury Lawyers (APIL) has warned.
“Rather than weeding out the claims less likely to succeed, it will prove cheaper for claimant lawyers to lodge all claims, forcing the defendant NHS or NHSLA to do the screening work instead – at extra cost to the public purse.”
In Managing the cost of medical negligence claims, a briefing paper responding to plans by the Department of Health to impose fixed costs on cases worth up to £250,000, APIL said if the NHS had to screen cases the result would be “cost shifting, not cost reduction.”
APIL said law firms had reported turning away 85% of potential medical negligence claims which came through the door, by applying a screening process in the early stages. Of the claims which proceeded, early admissions were only secured on a small proportion.
The association argued that since the introduction of LASPO and the end of recoverability of success fees and a large proportion of insurance premiums, the NHSLA was already saving a third of the legal costs it paid out, “by doing nothing at all”.
For claims worth less than £25,000, APIL said data collected from claimant lawyers indicated that the saving was 39%, equivalent to a saving for the NHSLA of over £71m a year.
APIL said that in its view only medical negligence cases involving claims of up to £25,000 could be regarded as “low value” and in 2013 it worked with the NHSLA and AvMA (Action against Medical Accidents) on a possible fixed-fee scheme for cases of that nature.
APIL said mid to high-value claims followed a “different path” and were not suited to fixed costs as they required an “experienced legal practitioner”.
“This is not an ‘entry level’ job that any solicitor can do: it requires specialism and expertise to get the right answer for the client and ensure that the claim is run in an efficient and correct fashion.”
APIL called for the government to either insist on accreditation for medical negligence lawyers or employ strategies to “nudge practitioners towards accreditation”.
The association also called for a review of all cases “where admissions were made or damages paid” by the NHSLA to the claimant to speed up the decision-making process and encourage earlier settlement.
It argued that decision-making should be standardised across the NHLSA and individual NHS trusts, to avoid the risk of inconsistent decisions, and the cap on the amounts that the NHS can recoup on ambulance and hospital treatment costs should be removed.
Deborah Evans, chief executive of APIL, said: “We can see the feasibility of reducing costs and improving the process for cases with a value of up to £25,000. We have talked about this before and ministers know we are prepared to work with them on this idea.
“But there is a set of key principles which must underpin any proposals and this includes maintaining the right of injured patients to seek redress and making sure reforms are even-handed so that improvements are made on both sides of the litigation process.
“Damages should not be reduced, and there should be no dumbing down of the process – medical negligence cases need to be dealt with by experienced solicitors. If the system becomes open to inexperienced legal practitioners it will only cost the NHS more in the long run.”