Access to justice in clinical negligence cases … What access? What justice?

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The Government’s announcement that it plans to introduce a fixed costs regime for clinical negligence claims of up to £250,000 will almost certainly strike the death knell for access to justice for negligently injured patients.

It had previously been assumed that fixed recoverable costs were only being considered for cases where damages are awarded up to £100,000. However, it is now proposed that the new fixed recoverable costs would apply to all cases in which the letter of claim is sent on or after 1 October 2016.

Health Minister Ben Gummer claims to want to reduce the £259m bill for legal fees which the NHS paid out over clinical negligence claims in 2013/14. He said: “Unscrupulously, some lawyers have used patient claims to load grossly excessive costs onto the NHS and charge far more than the patient receives in compensation.”

While there is no denying that in some clinical negligence cases, the costs payable to the patient’s lawyers exceeds the level of compensation which the patient receives, there are key reasons why this is the case.

Clinical negligence cases are complex and it is a very specialised area of law. Each case is unique and presents difficult and challenging issues. Patients’ medical records are often extensive and require careful review. Multiple reports from a number of experts in different, specialist fields are often required and a forensic analysis of a patient’s medical records is always required.

The burden of proof is on the Claimant to establish breach of duty (that a negligent act or omission has occurred), causation (that the breach of duty has been causative of a worsening or deterioration in a patient’s condition) and the extent of the losses sustained. These highly complex cases require solicitors with many years of practicing experience and access to multiple medical experts.

For example, I am currently dealing with a case on behalf of the widow of a 70 year old man who died as a result of alleged clinical negligence. His medical history is complex and includes previous surgeries to his heart and spine. Expert evidence has been required from an A&E specialist in relation to breach of duty and a Neurosurgeon, Radiologist, Intensive Care consultant and a Cardiologist regarding causation and loss.

It is very difficult to see how a ‘one size fits all’, fixed cost regime can successfully work in this highly specialised area of law.

NHSLA conduct

The Department of Health’s criticism of the NHS’ legal bill makes no admission of the part it has played in driving up costs. Nearly all clinical negligence solicitors will have been faced with the situation where exhaustive attempts have been made to resolve a claim by way of negotiation prior to the commencement of Court proceedings but the NHS Litigation Authority (NHSLA) has steadfastly refused to make any admissions or entertain any offers of a settlement.

More often than not, it is only after Court proceedings have started but before the claim reaches the stage of a final trial, the NHSLA makes concessions and offers and the claim is ultimately resolved. In these situations, the costs are inevitably many times higher than they would have been, or indeed should have been, had sensible attempts to resolve the claim been made prior to the commencement of Court proceedings.

I recently dealt with a case where prior to Court proceedings commencing, an offer was made on behalf of my client to the sum of £25,000. However, the offer was rejected and liability denied in full. Shortly after the exchange of expert reports, an offer was made on behalf of the NHSLA which resulted in the claim being settled for £17,500 (some 18 months after my client’s initial offer). The delay in settlement resulted in estimated additional costs of more than £100,000 – including legal fees, expert fees, Court fees, VAT, etc.

Yes, the costs were high, but what choice did my client have? She had to prepare her case on the assumption that it would ultimately be decided by a judge.

It is also worth pointing out that some cases would be avoided entirely if the hospitals and Trusts concerned were more open and honest about mistakes. Clinical negligence lawyers are often regarded as the option of ‘last resort’ by patients and their families ground down by NHS Trusts’ own complaints process and who are often still none the wiser on what went wrong and why.

An elderly female client of mine suffered a heart attack during a routine gastroscopy. After nearly three years, including two dispute resolution meetings, she is still in the dark and has been left with little option but to instruct a lawyer to try and get to the bottom of what happened to her.

Managing costs

There is already in place a robust assessment system to ensure that the NHSLA does not have to pay costs deemed to be ‘excessive’. Patients who receive compensation are only entitled to the payment of ‘reasonable’ legal costs. If agreement is not reached between the parties, these costs are assessed by a judge to determine what the NHSLA should pay.

Since 1 April 2013, the costs of pursuing claims are subject to much greater scrutiny from the Courts who are obliged to proactively manage the legal costs that the Parties to a dispute can incur. In every case, the Court will make a Costs Management Order recording the level of costs that the Court considers reasonable and proportionate. The Court must take into account the value of the claim. If the costs recorded in the Costs Management Order are exceeded then they are not recoverable from the other Party.

To sum up, patients who’ve suffered due to clinical negligence can be left physically disabled, mentally traumatised or unable to work through no fault of their own. In my view, it is only right and fair that they have access to justice and can pursue a claim for compensation to enable them to get the care and support they need.

Clinical negligence lawyers play an important role in helping to improve standards in medical practice and in ensuring that lessons are learned where entirely avoidable mistakes have occurred. If it is no longer viable for injured patients to have their potential claims properly investigated, then it is highly likely that more mistakes will happen and standards in medical practice will fall.

Clinical negligence lawyers will be keenly awaiting the launch of the Government’s formal consultation in the autumn to make their views heard. It remains to be seen if this will make a difference but if the Government is serious about reducing legal costs in clinical negligence cases, alternative options must be considered.

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