Are we set for a fixed costs future for medical negligence claims?

Tuesday, 06 October 2015 08:43

In the past year there has been a lot of press coverage on the concept that Solicitors are charging more for successful clinical negligence claims than Claimants are receiving in damages and that this is putting an extreme burden on the NHS.
The Government are therefore suggesting that solicitor’s costs should be capped for clinical negligence claims worth up to £250,000. No sensible reason can be drawn for this option. One can only believe that this would in fact prevent access to justice, which is the key cornerstone for what our legal system is so famous.

In the current position clinical/medical negligence Solicitors already find themselves selective about the cases they can take. Cases of lower value are often more complex and require more expertise and time taken on them. This is not something that can be done cheaply or by any automated system. This issue is not the fault of the victim but if there is a cap to fees, Solicitors will not be able to take on these cases and thus people that have been injured or hurt by no fault of their own are not able to be rightly compensated. It must be remembered that this compensation never makes up for the injuries they have suffered it is helping with things that they now vitally need e.g. adaptations and care.
In any court case there are two sides and what is not being suggested by this proposal is a review on Defendant solicitor’s actions and their costs. With almost all clinical negligence cases finding that at some time the Defence have sought to extend the time of the proceedings - whether it is by an extension of time to respond or by repeatedly denying liability right up until the end and then settling at the last minute. If this was prevented it would reduce costs significantly. But no new reforms are putting any pressure on the Defence to settle.

Furthermore delaying of the process of a claim could become even more of a tactic for the Defence if the new proposal is implemented as they would now be aware of the restriction of costs and hope that if they delay long enough and drag out the process the Claimant will no longer be able to afford to continue.

The Daily Telegraph wrote an article on the cost of medical errors to the NHS and part of this highlighted how much Solicitors were being paid. It showed a pie chart of the top ten highest paid firms. The figures are shown to shock at how high Solicitors are being paid but what is not written is that seven of the ten firms were defendant specialist firms – so perhaps the issue of high legal fees lies elsewhere?

Health Minister Ben Gummer explained that “safe, compassionate care is my upmost priority and to achieve this, the NHS must make sure every penny counts”. One can only hope that they consider investing in better training and support systems to avoid the mistakes being made than preventing those who have been injured accessing justice.

If you have a medical negligence claim you would like to discuss, please do not hesitate to call one of our specialist teams.

Author: Hayley Lewis, Legal Assistant, Email:  

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