Cap on lawyer fees for minor negligence claims could save NHS millions
Authors: Clare Dyer
Publication date: 31 Jan 2017
Lawyers whose clients win compensation between £1000 and £25 000 for clinical errors will have the costs they can recover from the NHS capped, under proposals from the Department of Health for England.
The move is aimed at saving legal costs in clinical negligence claims of lower value, where costs can often dwarf the compensation received.
The Medical Defence Union, which indemnifies doctors against legal claims, said that the proposal did not go far enough and argued that the health department should have gone ahead with an earlier plan to cap costs for claims up to £250 000.
But the patient safety charity Action against Medical Accidents called for the plan for a cap on costs to be dropped, claiming that it would make the NHS less safe and prevent lawyers taking on deserving cases.
In a consultation that closes on 1 May 2017, the department proposes new rules to speed up and simplify the litigation process for claims up to £25 000, with fixed costs for claimants’ lawyers depending on the size of the claim and the stage at which it is settled. Fees for expert witnesses’ reports would also be capped.
The scheme would apply to England and Wales but not to Scotland or Northern Ireland. The consultation document estimates that it would shave around £45m a year from the litigation bill. The total cost of clinical negligence to the NHS in England rose to £1.5bn in 2015-16, of which 34% went in legal costs. In 2015-16, legal costs paid out to claimants’ lawyers amounted to 220% of the damages awarded in those cases worth between £1000 and £25 000.
The consultation document acknowledges that the size of the compensation may not be a guide to the complexity of a case. Low value claims such as those involving stillbirths and the deaths of children and older people may still be complex.
Exemptions from the fixed costs scheme are proposed for the most complex cases and for deaths of children resulting from clinical negligence.
Action against Medical Accidents said that the proposals could create a perverse incentive for NHS bodies to adopt a “delay and deny” culture, denying liability until solicitors were forced to drop the case because they could not afford to pursue it further.
Its chief executive, Peter Walsh, said, “Not only would these proposals potentially deny access to justice in some of the most serious cases, but they would also make the NHS unchallengeable in some cases and prevent lessons from being learnt.”
Matthew Lee, professional services director at the Medical Defence Union, said, “In the longer term we need root and branch reform of personal injury law to address the rising cost of compensation claims themselves, which are reaching unsustainable levels.”
BMJ Careers Tackling the rising cost of clinical negligence claims [Link]
- Department of Health. Fixed recoverable costs for clinical negligence claims. Jan 2017. [Link] .
Clare Dyer The BMJ