Fixed Costs in Clinical Negligence – Will it Really Make a Difference?

The government has today announced their plans to proceed with their proposals, to fix costs in clinical negligence cases. Fixed costs will apply to all clinical negligence cases worth less than £25,000 and ministers will now establish a working group to assess how the cap will work in practice.

It has not yet been announced when such proposals will come into force, or at what level legal costs will be fixed to. More details are to be announced in the Autumn.

The aim of fixed costs is to reduce the amount of money spent by the NHS on legal costs for medical mistakes. It is reported that legal costs accounted for 37% of the £1.7 billion spent by the NHS in clinical negligence cases between 2016 and 2017. The aim is to save the NHS up to £45 million per year.

The issue of fixed costs in clinical negligence has been the topic of debate amongst lawyers over the past couple of years. The key message being that, in order to reduce the clinical negligence bill on the NHS, more focus should be given to improving patient safety in the first instance. Reducing the number of medical mistakes will inevitably reduce the number of negligence cases, thereby creating a costs savings.

Indeed, Jeremy Hunt, Health and Social Care Secretary, accepts that the best way to cut the costs of clinical negligence claims is “to reduce patient harm in the first place”. It is unfortunate that our government has shied away from improving patient safety and instead, sought to address the issue of legal costs instead.

There is also great scepticism amongst the medical and legal community as to whether these proposals will, in practice, save the NHS money. Costs incurred in clinical negligence cases are often indicative of their complexity. Some law firms may therefore decide to decline to represent individuals who have low value but complex medical claims, where they have suffered an injury following medical malpractice. Most cases involve complex medical issues requiring the involvement of an array of medical experts. These are the types of cases which will suffer, as the fixed costs regime will severely limit the nature or the legal investigation, making these cases difficult to pursue and therefore closing the door on accessing justice.

Additionally, like with fixed costs in Road Traffic Accident cases, we are likely to see an increased number of these lower value claims as they will now garner the attention of Claims Management Companies, therefore meaning that, in reality, there will little or no costs saving.

Further, the vast majority of cases settle during negotiations prior to reaching the courts. Borderline cases, those with a value around the £25,000 mark, are likely to be fought much harder by lawyers in an attempt to avoid the costs cap. This means that the Courts may now see an increase of these lower value cases where settlement has not been achieved. Again, this will give rise to an increase in legal costs.

Robert Rose, Partner at Lime, is a specialist clinical negligence solicitor who has been representing the interests of injured patients for over 23 years. He said “I genuinely believe that fixed costs will not help the NHS to save money spent on negligence claims. The only solution has to be to prevent such mistakes in the first place. Jeremy Hunt seems to have forgotten that, in April 2013, new rules were introduced which significantly reduced the costs recoverable by lawyers in clinical negligence cases; success fees have since been payable by the client out of the damages they receive and the Courts introduced strict costs budgeting rules. Despite this, the costs of clinical negligence on the NHS has continued to rise since April 2013. Clearly, by attacking the costs of clinical negligence cases, the government is not tackling the core of the problem, which is to reduce the number of medical mistakes in the first place. I, like many other lawyers, will be interested to see the outcome of the working group in the Autumn, and to understand how fixed costs will work in practice.”

If you would like to talk to a specialist Clinical Negligence solicitor, please contact Lime on Freephone 0808 164 0808 for a free no-obligation chat. Alternatively, you can complete the request a request a call back form and we will call you.