Following concerns that NHS compensation payments are “unsuitable”, the CJC have been working on plans to implement fixed recoverable costs for Claimants pursuing medical negligence claims worth up to £25,000.00 however, these plans may have unintended consequences.
Under current rules, the Defendant is required to pay the legal costs of the Claimant and there is no specific limit on what these costs could be. If fixed costs were introduced and the Claimant’s legal costs exceeded these costs, either the Claimant or their legal team would be required to cover any outstanding costs. This movement would not work in favour of the Claimant and would therefore only benefit the Defendant party who have caused the harm. Queries have been raised as to why no focus has been placed on the impact of the Defendant’s behavior on the issue of costs. In many cases, the Defendant prolongs the claim which incurs higher costs. This means that the reason for escalating legal costs is often due to failures by the Defendant to prevent and address medical accidents in the first place. The NHS are renowned for increasing costs through a ‘defend, deny and delay’ culture. Legal organisations have therefore proposed that in order to avoid costs rising, the projected plans should demand a change in Defendant behavior.
The proposed cap of £25,000.00 would mean that even fatal injuries caused by negligence would be subject to fixed fees despite the complexity potentially involved with running a case of this nature. It has been suggested that the Government do not have a full understanding of the day-to-day experience of running medical negligence claims and should therefore take a step back from implementing such proposals as they deny access to justice particularly in complex and difficult claims. It should be considered that low value compensation figures do not always equate to simple and straightforward cases, particularly where medical failings are alleged.
The vast majority of medical negligence claims are complex, difficult and lengthy, regardless of the level of compensation involved. Not only are legal teams instructed to deal with such cases, but medical experts are also often instructed to assist, which can cause the case to become costly, through no fault of the Claimant. Whilst improvements can be made to streamline the process of making a claim, this should be achieved without reducing access to justice for patients and restricting the collation of evidence, irrespective of whether their claim is of high or low value.
The proposed changes aim to significantly reduce the existence of claims under £25,000.00 which will undermine the Claimant’s right to a fair outcome, specifically in low value cases. The main concern with the implications of these changes is that they will limit access to justice for people with legitimate claims who have been injured through no fault of their own.
Whilst the Government’s aim to improve patient care is vital, the current proposals are not the best way to achieve this. Fixed recoverable costs should only apply to very simple claims and they should not restrict a Solicitor’s ability to work on low-value cases to the highest standard.
If fixed costs are introduced the government must make sure that:
- Victims of clinical negligence are able to get fair compensation for their injuries.
- Solicitors can take on low-value cases without compromising professional standards.
- A process is agreed which includes challenging poor behavior on both sides.
- Exemptions are in place in certain circumstances such as death.
It is advised that any patient who has suffered medical negligence seeks legal advice as soon as possible from our expert, Skegness based, Clinical Negligence Lawyers, before the introduction of fixed costs. This will ensure that the level of compensation they receive is not negatively affected by the implementation of such cost restrictions. To get in touch call Hodgkinsons Solicitors Medical Negligence Solicitors in Skegness on 01754 897150 or find out more here.