Fixed costs for clinical negligence?

Government proposals for fixed costs in clinical negligence claims worth up to £25,000 would make only the most straightforward cases commercially viable, leaving many vulnerable patients without a legal remedy, lawyers say.

About 34% of the £1.5bn paid out by the NHS in clinical negligence costs in 2015/16 went on legal costs. The Department of Health (DoH) proposals are contained in its consultation, Fixed recoverable costs for clinical negligence claims, which closed on 2 May.

In its official response to the consultation, law firm Hodge Jones & Allen said the proposals were ‘based on inaccurate cost estimates, fanciful time analysis and flawed logic, including the false premise that lower value claims are by nature less complex, the view that sufficient expert evidence in such cases can be obtained for under £1,200 and that particulars of claim in complex cases can be drafted by junior fee earners’.

Association of Personal Injury Lawyers president Neil Sugarman said: ‘Taking an axe to how much the Department of Health pays does nothing to tackle the factors which drive costs, such as the ludicrously long waiting times for the recovery of medical records, or arduous expert reports.’

However, a survey commissioned by the Medical Protection Society (MPS) found that three-quarters of the public want the government to reduce the amount of money lawyers can claim from the NHS in legal costs, and 81% supported ‘fixed costs’.

The MPS has called on the government to go further to preserve NHS funds, and to impose fixed costs on cases valued at up to £250,000.

Emma Hallinan, director of claims at the MPS, said: ‘In lower value claims it is not unusual to see lawyers’ costs exceed the compensation awarded to claimants.

‘In a recent case involving a delayed diagnosis of a pituitary tumour which settled at £3,250, legal costs of £72,320 were sought. That was reduced to £24,600 after a provisional assessment last summer, which found that the bill was disproportionate.’

Any official response to the consultation will be decided by the new government formed after the 8 June election.