What's Happening with Fixed Costs in Clinical Negligence?
Opposition to fixed recoverable costs in clinical negligence seems to be on the increase.
The current situation with fixed costs
The costs which can be recovered from the opposition when investigating a successful claim for personal injury have been limited in some fields since 2013. Public Liability, Employers' Liability and Road Traffic Accident cases have had capped costs in cases where the value is up to £25,000.
A consultation has recently been completed regarding the extension of this system to cases with a value of up to £100,000. The amount of costs which can be recovered by solicitors investigating these cases will be strictly limited.
Costs in clinical negligence cases where the claimant has suffered physical and possibly mental trauma due to poor medical care have so far been regarded as an exception to the implementation of fixed costs but this will not necessarily remain the case.
The Civil Justice Council was tasked last year with assessing how such a system might work within a clinical negligence setting. Their report is expected shortly.
Why is clinical negligence different?
Clinical negligence claims can cost a considerable amount of money in order to assess the quality of the care which the patient received and the extent to which that care has impacted on the patient both now and in the future.
A complex clinical negligence claim may require the time and expertise of several medical experts. It may take years to resolve as the future prognosis for the client may not be clear at the outset.
It also requires the expertise of a skilled and experience specialist medical negligence solicitor.
Even where the potential value of the claim is low, the claimant may have suffered significant injury and deserves to receive justice.
Why is there opposition to the implementation of fixed costs in clinical negligence?
Those who are opposing a fixed costs system fear that it will mean that the poor, in particular, will lose access to justice and receive no compensation for the effects of the negligence they have suffered.
If high costs are sometimes necessary in order to prove that clinical negligence caused a patient to suffer, there is a fear that the specialist law firms who undertake this work may withdraw from the sector if their costs cannot be covered.
Furthermore, if costs are restricted, a thorough investigation is unlikely and justice may not be done.
The NHS's own investigation last year into why people make clinical negligence claims found that, for many claimants, one of the key motivators was a need for recognition that they had been poorly served and a need to feel that justice had been done.
Opposition to the proposals
A former Lord Chancellor, Lord Falconer, has recently added his voice in opposition to the government proposals to extend the system to clinical negligence cases.
As reported in the Law Gazette, he observed that 'the government proposals would likely backfire as established firms on the claimant side would exit the sector and be replaced by unregulated claim management companies.'
The Society for Clinical Injury Lawyers (SCIL) has consistently argued against the fixed costs proposals on the basis that they are unsuitable to a clinical negligence setting and will deprive patients of justice.
SCIL has made its own proposals, focusing on the need for medical organisations to acknowledge and learn from mistakes, thereby aiming to ensure that the number of future clinical negligence cases is reduced.
Furthermore, SCIL's proposals for a clear system to lower costs are gaining the support of insurers as well as the patient safety charity, Action Against Medical Accidents (AvMA).
Medical negligence
If you or a loved one are suffering significant and long-term problems due to a failing in medical care, you may wish to consider making a claim for compensation.
Contact us here at Glynns to discuss your situation with a specialist medical negligence solicitor.
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