If you take out a clinical negligence case against the NHS or a private healthcare provider and they choose to deny liability, a legal battle ensues and your solicitors are going to incur costs. Currently, if your case is successful, the healthcare provider will have to pay you damages and also pay your solicitors the full legal costs incurred in fighting the case. That might be about to change.
The DH wants to reduce the cost of clinical negligence cases by imposing a cap on the amount of legal costs claimants can recover when they settle their claim (e.g. when it becomes clear it was a deserving claim). They are currently consulting on the proposals.
It wouldn’t matter how long and how unreasonably the claim was defended by the healthcare provider. No more than the fixed amount of legal costs could be recovered, no matter what the actual costs were.
DH’s ‘preferred option’ is to cap the amount of legal costs they will cover in cases where damages will total less than £25,000. The monetary value of a claim is not an indicator of its seriousness or complexity. This approach could have very serious unintended consequences.
The consequence will be that many people who have claims ‘worth’ less than £25,000 won’t be able to get a solicitor who is prepared to represent them if the healthcare provider is denying liability.
The sorts of cases that will fall into this bracket include stillbirths, other child death cases and neglect of older people. (Because these groups do not tend to have income or dependants the monetary value of these claims are low).
In many cases the actual legal costs can perfectly legitimately escalate well beyond the amount of the damages if the healthcare provider continues to deny liability. Many solicitors are in this field for the right reasons, but they work for commercial firms who cannot justify incurring costs that they will never be able to recover.
Inevitably, many people will be left with no way of challenging denials of liability or of getting the compensation and accountability they deserve.
Lessons will not be learnt
It’s not just injured patients and their families who would be affected. Most of the cases affected by these proposals involve denials of liability which are eventually found to be inappropriate. If people are not able to challenge the denial, the NHS will continue to delude itself that it did nothing wrong and lessons will not be learnt to help prevent the same mistakes.
A perverse incentive would also be created to simply deny liability when a claim is received, in the knowledge that most people in these circumstances simply won’t be able to challenge it. It is precisely this kind of “deny and defend” culture that experts agree works against patient safety. Your local hospital or GP surgery could become less safe as a result of these proposals.
Of course some of these cases would end up being taken forward. However, because of the very low caps on recoverable costs envisaged, even if a solicitor did agree to take it on and won, they would be likely to have to recover some or all of the costs from the claimants’ actual damages. The DH consultation does not mention this likelihood. Such claimants could have most of their damages taken in helping meet the legal costs.
Better ways to avoid the cost
There are better ways to avoid both the human and financial costs of these cases. Improving patient safety to avoid them in the first place is the obvious one. These proposals would have the opposite effect. But even when there has been an incident, if it is investigated properly, the causes identified and an admission of liability made early, almost all of the legal costs disappear.
The Department of Health does not even consider how bad defendant behaviour on the part of its own agencies causes disproportionate costs. It pushed ahead with these proposals in the knowledge that the National Audit Office is reviewing the NHS Litigation Authority and reporting back later this year. Only a few years ago the Government took clinical negligence out of scope for Legal Aid against the wishes of even the NHS Litigation Authority itself, who recognised it was a cost effective means of allowing the resolution of these cases.
The problem is of the Government’s own making, and far from being a solution, their proposals would make things worse. It’s time to act. The consultation closes on 1 May 2017.
Peter Walsh is chief executive of Action against Medical Accidents (AvMA).
Members of National Voices are invited to a roundtable meeting about this proposals to cap recoverable costs for clinical negligence claims. The meeting will take place on Monday 27 March 2017, 2–4pm, at National Voices’ office, 18–20 Bride Lane, London, EC4Y 8EE. To register for the meeting or to request a briefing, contact Vicki Norman att firstname.lastname@example.org, or call Vicki on 0208 688 9555.