A UK government plan to launch a consultation tackling “increasing and disproportionate legal fees” for lower value medical clinical negligence claims has been criticised by some, who say more attention should be paid to reducing the negligence in the first place, reports Medscape.
The overall cost of clinical negligence in England rose from £582m in 2006/7 to £2.2bn in 2020/21, while for all claims, legal costs have increased more than fourfold to £433m since 2006/7.
Medscape reports that the government’s proposals, outlined by the Department of Health and Social Care (DHSC), would bring legal costs more in line with the amount of compensation being awarded for lower value claims, worth between £1,001 and £25,000.
The plans would only affect the legal costs that people making claims and their lawyers can recover after a successful claim, not the amount of compensation patients would receive, and could save nearly half a billion pounds over the next 10 years, according to the DHSC.
It added that the overall cost of clinical negligence claims has risen significantly and the National Audit Office (NAO) identified the legal fees of those who make claims as “a significant factor”. The NAO, it added, recognised that this does not appear to be due to a decline in patient safety.
However, a patient safety charity and a clinical negligence lawyer have criticised the proposal, saying there should be more focus on reducing negligent care rather than concerns over its cost.
“If they looked at being more efficient for low-value cases, anyoneʼs going to welcome any lower costs, whether they be a claimant lawyer or a defendant lawyer, because obviously thatʼs less NHS money,” said Suzanne White, partner at Leigh Day and head of the medical negligence team.
“Thereʼs a very easy way to save £500m of NHS money and that is to provide non-negligent care. So weʼre not talking about mistakes here, weʼre talking about care that no other responsible or reasonable medical professional would give.
“The focus should not be on the end bit where ‘itʼs costing us a fortune’… the focus should be on providing good care, so there are fewer of these cases.”
She said certain cases that might be seen as a low-value case in the eyes of the law, such as a baby dying before it is born because of negligent care, might require various experts and an inquest, which would involve extra costs for representation.
“The cost can sometimes be more than the value per claim because the value of the claim is so low to begin with,” she added. “Yet weʼre talking about the death of the baby, so itʼs incredibly important that these cases are done.”
Would lowering fees restrict access to legal representation?
Peter Walsh, from the patient safety charity Action against Medical Accidents (AvMA), said it was “shocking” that the government was “still pushing to bring in these illogical and profoundly unfair proposals”, and echoed Whiteʼs sentiments on preventing the incidents from taking place initially.
“The effect of these proposals would be that many people whose lives have been devastated by perfectly avoidable, negligent treatment will not be able to challenge denials or get access to justice,” he said.
“If lawyers are unable to claim for time they spend overcoming denials of liability, injured people will not be able to get legal representation.”
Medscape article – Government Looking to Cap Legal Fees for Clinical Negligence Claims (Open access)
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