Victims of Medical Negligence will suffer under fixed fee proposals

The government has confirmed (as long feared) that it proposes to introduce fixed fees to medical negligence claims.

Over the last few years, fixed fees have already been introduced to all personal injury claims relating to road traffic accidents, accidents at work and public liability accidents (such as highway trips and falls in public spaces/premises).

Those fees already mean that, for all claims worth under £25,000 (which is the large majority), the injured claimant’s solicitor will only receive a fixed fee for the work done (with the typical fee being between £500 – £1,300).

The impact of this is that many solicitors are unable (or at best unwilling) to represent claimants in cases that may be more complex or challenging because the solicitor will only be paid a relatively low fixed fee for that work if they win (of course getting nothing if they lose).  Therefore, claimant solicitors will no longer be able to pursue cases for years in order to run all liability arguments, compile all of the necessary evidence and medical reports and pursue the matter through the courts, because they will not be paid for their time.  A solicitor could well receive the same fee for recovering compensation of £9,500 for a claimant after 3 years of pursuing a contested case as they would for recovering £1,000 in compensation after 3 months.

The government tried to offset these restrictive fees by allowing solicitors to deduct costs out of their client’s damages. As a principle, this is unfair as genuine and successful claimants are effectively having to subsidise the legal costs that were previously payable by the insurance companies of the liable defendant. In practice, this is simply further punishing claimants by reducing their compensation at a time when making a claim in the first place has become harder than ever as many firms only look to take on the most straightforward of cases.

Therefore, the prospect of extending this fixed fee regime to medical negligence claims is most alarming.

Firstly, there is no online portal for medical negligence claims. Therefore, claims are still started via postal or email correspondence and the defendant (usually the NHS) will have up to 4 months to then respond.  At the outset, the claimant’s solicitor will have had to review the medical records and then usually obtain an expert opinion from an appropriate independent medical expert to report on the standard of care.

Once the claimant’s letter of claim and medical expert opinion is submitted, the NHS’ solicitors often fail to respond within the 4 month protocol period. They will often insist upon obtaining their own expert evidence before responding. Lengthy arguments are then entered into regarding the standard of care and, if an admission of breach of duty is made, much work then has to be done on procuring expert evidence on causation (i.e. what injuries/suffering has been caused by the breach of duty) before the level of compensation can then be negotiated or determined by the court.  In our experience, many cases are contested for years before the NHS is prepared to concede liability and offer compensation.

Once a case is successfully concluded, the NHS will then invariably argue that the costs claimed by the claimant’s solicitor are excessive and disproportionate to the level of damages. However, the conduct, delays and unmeritorious defences of the NHS are almost always behind the significant legal costs incurred. Furthermore, their conduct is very rarely influenced or affected by the severity of the injury or damage caused. Therefore, cases worth less than £5,000 can often wrangle on for years due to this conduct, just as long as cases involving incredibly severe injuries.

I recently settled a case worth £10,000 after 3.5 years. It related to an outdated form of procedure being used by a locum surgeon and, despite having early expert evidence confirming that it was now common practice to use a more modern form of procedure, the NHS spent over 2 years arguing the case and getting their own expert opinions before discussing compensation.

Therefore, the introduction of fixed fees to medical negligence claims will not only encourage such conduct on the part of the NHS Litigation Authority (who will be able to take as long as they like without any risk of having to pay more costs) but many claims that should succeed will fail or may never be brought.  This is because claimant solicitors will have to weigh up whether the complexity of the case outweighs the potential value of the compensation and level of fee that will be recoverable. Furthermore, during an ongoing case, a claimant’s solicitor may be prevented from pursuing a case further if there is evidential uncertainty and the restrictive fixed fee recoverable is not enough to justify the amount of work required to overcome and address that uncertainty.

The government will again argue that the claimant’s solicitor will be able to charge their own client but why should a victim of medical negligence who has suffered injuries and loss and succeeded with their claim after potentially years of delays and legal arguments then have to pay significant legal costs to their solicitor which could well exceed the costs payable by the NHS?

The Department of Health has cited the level of legal costs paid out as being excessive and disproportionate but, in addition to the above reasons for such costs, the statistics provided fail to point out that 9 of the 10 top grossing medical negligence law firms are defendant firms (i.e. firms working for the NHS/medical institutes) who charge an hourly rate for their time. It is very much doubted that any reforms in this area will see defendant costs (recoverable if they successfully defend cases) similarly subjected to a fixed fee regime.

The result of less claims and lower payouts will see the DWP recover less in recoverable benefits (where a defendant has to repay to the DWP certain benefits paid out to the claimant if they have been paid as a result of the negligence of the defendant).  Less and lower value claims will also mean that people stay injured and out of work for longer and will result in more victims requiring ongoing care and treatment from the NHS.

However, the overriding concern here has to be the complete absence of any attention to or focus on the need to reduce the instances of medical negligence. In fact, the proposals suggest that the government is only too aware that instances of such negligence is only likely to increase in the future.

Much like the insurance industry was able to stigmatise personal injury claims and ensure that the condition of ‘whiplash’ became synonymous with the adjective ‘dodgy’ in order to bring in a fixed fee regime, the government will be able to taint ‘medical negligence’ by identifying excessive lawyer’s fees as a drain on the NHS, on your NHS service, because of course there are no other reasons behind the NHS’ struggles.

Just google ‘lawyers fees and NHS’ and you’ll be confronted with Daily Mail articles and other hits with headlines of ‘huge’, ‘excessive’ costs, and a ‘clampdown’ on ‘overcharging’. No mention of the increase in medical errors and negligence or the need to address/reverse this.  And so it has begun….

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