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Fixed Recoverable Legal Costs in Medical Negligence

View profile for Guy Pomphrey
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Over the past few years a hot debate has been raging between the Government, the Department of Health and Medical Negligence Lawyers about the cost of pursuing medical negligence claims.  The Department of Health, effectively the NHS, says that the costs of such claims are excessive and has now launched a formal Consultation about capping the legal costs of claims valued at under £25,000.   

This blog looks at how fixed costs could affect your right to pursue a medical negligence claim. 

What are Legal Costs in Medical Negligence Claims?

Solicitors charge clients for the time spent investigating potential medical negligence claims.  Independent medical experts are instructed to provide reports on the standard of patient care and whether any failings caused injury.  These experts need to see the patient’s medical records and witness statements from the patient or their family setting out what happened.  Many cases require multiple experts and applying the medical evidence to the legal tests is often challenging work. 

Once the initial investigation is complete, the solicitor will be able to determine whether the case is likely to succeed or not (many claims stop at this point).  If the case can proceed, the Defendant NHS Trust will be asked to investigate the allegations of sub-standard care and either admit or deny them.  If they are denied, the Claimant is usually forced to issue the Claim with the Courts.  Substantial work is then required once a Claim is issued at Court.

There is no longer government funded legal aid to pay for the solicitor’s legal costs in investigating the majority of potential medical negligence claims.  Most claims are therefore funded by “No Win, No Fee” Agreements.  These Agreements, often unfairly criticised by the press, enable patients to have their cases investigated by solicitors.  In essence, the solicitor will only be paid for their often extensive work if the medical negligence claim is successful; if not, the solicitor is paid nothing.  It is these types of Agreements that enable the majority of patients to have possible claims investigated. 

Fixed Costs in Medical Negligence Claims?

The latest Government and Department of Health proposal is to fix the legal costs of medical negligence claims valued at less than £25,000.  The idea is to save money by reducing legal costs based on their analysis that some cases have legal costs disproportionally higher than the compensation recovered.  We consider this is unfair and can preclude access to justice.  The complexity and therefore the level of legal costs in medical negligence claims often have no correlation with the total compensation received.    

Example 1

Sally, a 30 year old aged woman suffers a stillbirth at Hospital.  The Hospital apologise but dispute the care amounted to negligence.  The family, grieving for their loss, have little choice but to instruct a solicitor to pursue a claim for compensation, find out the truth and obtain justice.  

The family’s solicitor obtains supportive expert evidence from a midwife, obstetrician and a neuro-radiologist that the medical care was sub-standard but, despite putting this to the Defendant, they again flatly refuse to agree.  The case goes to trial and the judge finds that the Hospital’s care was negligent.  She heavily criticises the Defendant Hospital and their legal team for their conduct and for putting the family through the unnecessary distress of years of litigation.  The judge then deals with the value of the claim and awards Sally £24,000. 

The Defendant Hospital, having failed to concede civil liability at the start, raise the issue of fixed legal costs with the family’s solicitor.  The legal costs of the solicitors work (excluding medical expert costs which are not fixed in the same way) for the case and trial with a barrister amount to £40,000.  Because compensation amounts to £24,000 the Defendant will only agree to pay £13,000 (the exact manner in which the solicitor’s legal costs will be calculated under fixed costs is not yet certain and is being reviewed so the £13,000 figure used here is for illustration purposes and it may well be less).

Example 2

Steve, a 55 year old married father of two with a good job dies following surgery at Hospital.  An Inquest is convened and despite the Hospital being criticised they deny Steve died because of negligence.  Steve’s family instruct a specialist solicitor. The solicitor instructs one expert (an anaesthetist) and puts allegations to the Hospital that Steve died because of a failure to maintain his airway.  The Hospital disagree and the case eventually proceeds to a trial.

The judge finds the Hospital’s treatment of Steve was sub-standard.  He criticises the Hospital and its legal team for not making an appropriate early admission of liability.  Because Steve was married and working with two dependent children she assesses the value of the claim at £300,000.     

The solicitor’s legal costs (excluding the medical expert’s costs) of investigating the claim and attending the trial are £30,000.  The Defendant Hospital pays the majority of these legal costs. 

Consequences

The financial value of a claim for compensation should not determine which medical negligence claims can be pursued.  Everyone has the same right to access justice.  Fixed costs based on the value of a claim disregard this and make dangerous assumptions that claims worth less than £25,000 are more simplistic and straight-forward than claims over £25,000.  This is manifestly wrong. 

The sad reality is that unless medical negligence solicitors can work profitably they will no longer be able to offer No Win No Fee Agreements to everyone, irrespective of the value of the claim, meaning that the right to access justice and bring compensation claims will be severely curtailed.  Worrying further still is that fixed costs on medical negligence claims valued up to £250,000 (which is the bulk of all claims) has also been actively discussed by the Government without any clear, coherent and sensible plan as to how the level of a fixed costs regime could operate in a sustainable manner. 

On top of this we have the strange situation whereby the Department of Health is itself driving forward the idea of fixing claimant medical negligence legal costs.  In other words, they are trying to limit the legal costs that can be incurred investigating claims against themselves, the NHS.  This is surely a conflict given that fixing legal costs is likely to limit the claims brought against them.  Focus on avoiding medical negligence and learning from mistakes should instead be their clear priority.  

Finally, as illustrated in the examples above, we have the NHS Litigation Authority, the organisation that handles medical negligence claims. The National Audit Office are currently reviewing the NHSLA’s performance on the basis of criticism that the NHSLA sometimes defend claims unnecessarily which ultimately drives up legal costs and prolongs the distress and anxiety of claims for patients and their families.      

My view is that a fixed legal cost regime in a complex and specialist area will severely limit a patient’s right to access justice and seek redress.  It is driven by a misguided understanding that such a regime would save costs when, in fact, in the long run, it would drive up the legal costs of defending claims because without specialist and experienced medical negligence solicitors more cases (including weaker claims) would be pursued by patients on their own without any legal advice.

Medical negligence cases should be prevented by better standards of healthcare rather than limiting those who can access legal representation by fixing legal costs based on arbitrary settlement figures.   

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