Pilot of fixed costs scheme for clinical negligence claims

29 May 2013

The Law Society Gazette last week reported on a proposal by the NHS Litigation Authority to pilot a fixed costs scheme for clinical negligence claims.   It was reported that the scheme would be for claims worth up to £25,000 and that the legal costs allowed for representing Claimants in the scheme could be fixed at a very low level: as little as £500 where an early admission of liability is made, increasing to £2,000 where expert evidence is required first.  We understand that, if liability is admitted, limited additional legal fees would be allowed under the scheme for the purposes of negotiating settlement.

It was reported that, according to the NHS Litigation Authority: “the pilot is intended to ensure claims against healthcare providers are resolved, ‘fairly and promptly, and at proportionate cost’.”

It remains to be seen precisely what form this pilot scheme will take.   We would welcome any proposal which allows increased opportunity for injured patients and their families to obtain accountability and an appropriate amount of compensation for injuries caused by medical negligence.   Currently there are some cases (often in relation to minor injuries caused by negligent treatment) in which a claim is not pursued because the time and costs involved would clearly be disproportionate to the small amount of compensation which could be claimed.  For these cases, a fixed costs scheme may have some benefit.

However, clinical negligence claims are complex and, in order to prove the negligence, it is usually necessary for a detailed investigation to be undertaken by specialist solicitors acting for the Claimant.   Typically, this includes obtaining all of the relevant factual evidence, obtaining opinions from appropriate medical expert(s) and applying the legal test for negligence, which is not always straightforward.   It is necessary to carefully analyse all of the available evidence before presenting the Claimant’s case fully.   It is difficult to envisage how such medically and legally complicated cases can fit easily within a fixed costs scheme in which the Claimant’s access to legal representation is extremely restricted.  In particular, if the scheme is administered by the NHS Litigation Authority, which would otherwise be involved in defending the claim on behalf of the healthcare provider.

Additionally, the amount of compensation which can be claimed under English Law does not always reflect the importance of the claim to the Claimant.  This is particularly evident for claims involving the deaths of vulnerable members of society such as children, the elderly and the severely disabled.  As these individuals do not usually have any dependants, the amount of compensation which can be obtained in their claims is often quite low.  However, these cases are of the utmost importance to the families involved and it is concerning that they may be included in a fixed costs scheme with very limited access to legal advice and representation.

We await with interest further details of the pilot scheme.   Depending upon how it is structured, there may be some Claimants who would benefit from the scheme but there are also likely to be many Claimants for whom a fixed costs scheme will not allow sufficient access to legal assistance in order to pursue a complex clinical negligence claim.  It is therefore important that access to justice for these Claimants is unaffected and that participation in the scheme is voluntary.

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