On 30th January 2017, the Department of Health published a 12 week consultation, closing on 2nd May 2017, seeking views on proposals to introduce a system of Fixed Recoverable Costs in Lower Value Clinical Negligence Claims.

 

It is proposed that a Fixed Recoverable Costs regime would apply to clinical negligence cases involving awards of between £1,000 and £25,000 brought against the NHS as well as both not for profit and private healthcare providers in England and Wales, including dentists.

 

This would limit the amount of legal costs that could be recovered by solicitors who win clinical negligence claims on behalf of their clients to a set proportion of the damages (compensation) awarded to the injured patients or their families.

 

However, there are grave concerns from a number of bodies including charities for patient safety and justice and claimant solicitors regarding these proposals. One concern is the implications for access to justice as legal costs recovered by solicitors could only be a proportion of the damages secured for the patient/family which may mean that many would-be claimants would not be able to get a solicitor to represent them in cases where the damages are relatively low.  In effect many victims of serious neglect and negligent treatment such as in older people like we have seen at Mid Staffordshire and child death cases such as those seen at Morecambe Bay would simply be unable to have access to justice.

 

Another concern is the implications for patient safety, as an unintended consequence of the Fixed Recoverable Costs proposals would be the creation of a perverse incentive for NHS organisations to adopt a ‘deny and defend culture’. This is because they would be safe in the knowledge that simply defending and denying liability in many cases will mean that an injured patient or their family will be unable to take things further due to costs limitations. The result of this would be that important learning opportunities about lapses in patient safety would be lost. It is often the case that when errors have not initially been appreciated or admitted by the health provider, it is only the litigation process which brings these errors to light.

 

Angus Buchanan

 

About the author

Angus Buchanan works in the Medical Negligence department of Brindley Twist Tafft & James, a firm of solicitors in Coventry that specialises in medical negligence cases nationwide.  Angus has dealt with claims including medication prescription error, perforation caused by an endoscopy and a lack of pain relief during a caesarean section.