Charities & Patients Urge Government Re-Think On Plans To Clamp Down On Clinical Negligence Claims

We wrote in our previous blog about the Government’s proposals for a fixed fee recovery scheme in clinical negligence claims.

As the plans continue to move forward and take shape, it has this week been reported that nine charities/patient organisations have written to the Secretary of State for Health and Social Care, Sajid Javid, to urge him to think again about the plans.

The organisations involved in the letter include Action Against Medical Accidents, the Patients Association, the Birth Trauma Association, Action on Pre-eclampsia, Mencap, and Mind. All see the plans as a threat to both patient safety and access to justice and have raised these concerns directly to the Government through their letter.

Proposed fixed fee recovery scheme for clinical negligence claims

The Government has proposed a fixed costs regime for clinical negligence claims where damages are worth less than £25,000. The scheme would require a rapid exchange of evidence for faster agreement on liability, causation, and quantum, with claims assigned either to a light track or standard track according to their complexity. Two resolution stages would be built in a ‘stocktake’ meeting between parties and a neutral evaluation by a barrister to resolve as many cases as possible.

Costs would be limited to £6,000 for standard track claims plus 20% of damages agreed. For claims in the so-called ‘light’ track, proposed recoverable costs are no more than £1,500 plus 10% of damages.

Claims requiring more than two liability experts, those with genuine multiple defendants, and those involving stillbirths or neonatal deaths are excluded, as are those where limitation is raised by the defendant as an issue.

The letter to the Health Secretary warns that justice could be denied to victims of NHS blunders under the fixed costs scheme, and could mean that the NHS fails to properly investigate failings that put lives at risk.

Whilst the intention behind the proposals may be to limit the cost to the public purse of such claims, there is genuine concern that the plan proposed will be far more damaging and will mean that many victims of clinical negligence will be unable to pursue their claims at all.

This all comes at a time when the NHS faces a record number of negligence claims. Last year, more than 12,000 claims were lodged in England – a rise of 40% in 10 years.

It is safe to say that there is a significant bulk of claims that would fall into the fixed costs regime as they are worth less than £25,000. Statistics show that around eight in ten of all claims involve damages of less than £25,000.

The letter to the Health Secretary warned that some of the most vulnerable people harmed by clinical negligence would not be able to achieve justice under the scheme, because they would struggle to find solicitors to take their cases on. But, more than this, even if they were able to pursue their case, they would lose a significant amount of their compensation in legal costs that would be left to them to pay instead of the bodies responsible for the negligent harm.

The letter advises that:

Comment

The proposed scheme is extremely limited and will certainly restrict access to justice for many. Perhaps more importantly, the risk to patient safety is significant. There needs to be a clear system of redress and the proposals will impact this as there will likely be a bank of incidents that cannot be pursued legally under this scheme, meaning no accountability and no opportunities to learn. This is incredibly worrying.

Specialist lawyers in the field of clinical negligence and campaigners from patient groups are clear – the value of any clinical negligence claim does not reflect the complexity and amount of work required to pursue it to a conclusion. Nor does it in any way reflect the importance to the patient or their families.

It also fails to consider the conduct of the Defendant throughout the course of the claim.

It has to be hoped that the Government will take heed and consider piloting any scheme before full implementation in order that the issues can potentially be considered and captured to better facilitate a more robust and worthwhile scheme because, as matters stand, if these proposals are pushed through, it will be a very difficult time for victims of clinical negligence.