Claimant lawyers reacted with caution to the Department of Health’s announcement yesterday  that it is setting up a working group on introducing fixed recoverable costs in medical negligence, saying that while costs could be cut in lower-value claims, the real goal had to be avoiding clinical mistakes in the first place.
Brett Dixon, president of the Association of Personal Injury Lawyers (APIL), accepted that there was “scope to streamline the procedures and cost involved in lower-value claims”, but said this was only part of the story.
“So-called NHS ‘never events’ – injuries which are serious and largely preventable – have stayed at the same level in the past two years.
“Analysis of information provided by NHS Resolution in response to a freedom of information request shows that failures of maternity care represented a quarter of the damages paid out to injured patients in 2016/17. Failure in maternity care has been identified for years as a major problem for the NHS yet little seems to have changed.
“The urge to streamline costs and procedures must go hand in hand with a real, systemic, consistent reduction in avoidable injury. Only then will the NHS become more efficient, and only then will we see an end to the needless suffering of patients.”
Law Society president Joe Egan had much the same message: “While the Law Society does not oppose fixed recoverable costs in principle, the real savings for the NHS will come from learning from its mistakes and increasing patient safety…
“Cases which are not necessarily the highest in value can still be complex and challenging. Fixing costs could end up limiting the time specialist solicitors can spend understanding the details of an incident in care.
“Patients must not be denied the legal help they need to get the full compensation they are entitled to in law.”
Mr Egan also questioned the “worryingly short timeframe” for the working group to determine how fixed recoverable costs would work in practice.
Former APIL president Jonathan Wheeler, managing partner of London firm Bolt Burdon Kemp said fixing costs was “fine in principle, as long as the process by which claims are going to be dealt with is fixed first, and fair to both sides”.
He continued: “Those on the claimant side know this can work and have suggested a scheme to the Department of Health, although little progress to date has been made.
“My worry is that if patients’ needs are not taken into account, we are setting a dangerous precedent by allowing the wrong doer to fix the process by which they will be held to account. Where the wrongdoer is effectively the state, this throws up constitutional issues.”
He said the government was “treating the symptom, when it should be treating the cause: get your house in order, learn from your mistakes, adopt best practice, and cut down on the negligence in the first place”.
Agata Usewicz, head of the clinical negligence team at London law firm Hodge Jones & Allen, added: “It is dispiriting that the NHS’s focus remains on clamping down of ‘spiralling’ clinical negligence costs, when the most obvious way of cutting the costs of clinical negligence is to reduce incidents of harm in the first place.
“The Department of Health continues to perpetuate the myth that that is no limit on legal costs. In fact, costs are already tightly controlled, and subject to budgeting and detailed assessments”.
“The response to the consultation makes it clear that access to justice is a real concern to the majority of respondents, something else ignored by Jeremy Hunt’s comments.
“If access to justice is to be preserved, fatal claims, still-births, claimants lacking mental or legal capacity and claims where the client has a very short life expectancy must be exempted from any fixed recoverable cost scheme.”
From the defendant side, Christopher Malla, a partner City firm Kennedys – one of the firms that acts for the NHS – said claimants’ legal costs should be proportionate.
“Patient’s legal costs are often significantly higher than a patient’s damages, particularly in claims below £25,000, and these legal costs are taking vital funds away from front-line patient care.
“Any bespoke process designed by the working group must also take into account the importance of patient safety, ensuring lessons are learnt from incidents, with the overall aim of achieving the Secretary of State’s ambition of making the NHS the safest healthcare system in the world.
“This should reduce harm, clinical negligence claims and the overall cost to the NHS.”
Dr Rob Hendry, medical director at the Medical Protection Society, welcomed the commitment to a fixed recoverable costs scheme for clinical negligence claims.
“From the £1.7bn the NHS paid out on clinical negligence costs in 2016/17, legal costs accounted for 37% of that bill. It is right that we question whether such costs are sustainable for the NHS, and whether this amount of NHS money should be spent on lawyer fees.”
He said the society had hoped to see “a bolder decision” that put the threshold at cases worth up to £250,000.
“However a £25,000 threshold is a positive first step – one which we hope will be reviewed and possibly increased over time.”