The Department of Health (DoH) will face legal challenges if fixed fees for medical negligence cases are set at too low a level, the chair of the Society of Clinical Injury Lawyers (SCIL), has predicted.
Stephen Webber warned that the DoH plans would drive specialist lawyers out of the market if, following a consultation expected in November, fees were set at a “ridiculously low level”.
Speaking at last week’s PI Futures in Manchester, Mr Webber said he found it “hugely worrying” that the government believed a low-value medical negligence case could potentially be worth £250,000.
“If the fees are set at a ridiculously low level, and I have very little doubt that this seems to be the plan, that will move specialist lawyers out of the market and will leave it for litigants in person and for non-specialist firms which think they can operate at a low margin.
“The pre-consultation pretty much showed that whoever is considering the changes has no in-depth understanding of clinical negligence at all.
“The pre-consultation links the fixed fee to be set to value. That might work for personal injury, I don’t know, but it certainly doesn’t work in clinical negligence.”
Mr Webber said that “anyone who has any sort of understanding of clinical negligence” knew that the amount of fees incurred were linked to complexity, which tended to be linked to the number of experts that needed to be instructed.
However, Mr Webber predicted that the DoH sliding scale of fees would be linked to value and not the number of experts involved.
“I’ve seen a draft of the rules which gives a fixed figure, but does not relate that to the number of experts.”
Mr Webber said the Department of Health had already indicated that the process would save £80m, from claimant legal costs last year of around £300m – almost a third of the total amount.
He said it was “absurd” to compare claimant costs to defendant costs in clinical negligence.
“They get paid within a few months of the doing the work. I get paid within about five years of doing the work.”
Mr Webber said claimant lawyers had to pay court fees, ATE insurance premiums and VAT, as well as having to “triage out” about 85% of cases.
He went on: “There is no issue with fixed fees, the problem is going to be the level at which they are set. That’s going to be the problem. If they are set at a low level, there’s going to be a lot of litigants in person and a lot more work for the NHS.
“I can see a lot of firms risk-assessing cases in the future, based on the number of experts. If you’ve got a £25,000 claim and three experts, you just won’t be able to do it. If it was £100,000 and five experts, it wouldn’t be in any way profitable.”
Mr Webber said the most important thing was that fees should be set by an independent body.
“Can it be stopped, can it be challenged? If the fees are set at a reasonable level, I don’t think it can be. But if they’re set too low and proper specialist firms can’t operate in that market then, bearing in mind the defendant will be setting that unreasonably low figure, I’m absolutely certain there will be legal challenges.”
Mr Webber called on firms to respond to the consultation. “It seems that no fight was put up for MedCo. A fight needs to be put for this to make sure it’s done properly.”