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Proposed reforms on clinical negligence funding

View profile for Judith Thomas-Whittingham
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Proposed reforms on clinical negligence funding

The government have introduced a proposal to fix legal recoverable costs in clinical negligence cases, and the consultation is due to expire on the 2nd of May.

The current cost regime that we have is that the opponent, the losing party, pays the recoverable costs of the winning party, and these are the costs of the reasonable and necessary investigations in order to investigate and conduct a clinical negligence case. These costs are heavily scrutinised by judges with clinical negligence expertise, in order to ensure that the costs are proportionate to the issues involved.

The proposals which are put forward by the government will introduce fixed recoverable costs for cases which are valued between £1,000 and £25,000. This is irrespective of the complexity or the seriousness of the case. In addition to this, the government are planning to cap the experts fees, which are recoverable to be paid by the opponent, to £1,200, and also limit the use of expert clinical negligence barristers up until trial. The proposals which are put forward by the government in the consultation paper, pose a very real danger that there will be a restriction to access to justice for injured patients. The limit of between £1,000 and £25,000 bears no relevance to the seriousness and complexity of the types of cases that will fall within this bracket of compensation.

The other danger with a consultation is that the experts fee cap of £1,200, which has been put forward in the consultation, will prevent the injured patient in obtaining independent medical legal advice in order to bring their claim to the defendant. It is the claimant's burden to prove a claim against the defendant, in this case the NHS. In order for them to satisfy their burden, the injured patient has to make a case that is supported by a reasonable and responsible body of medical practitioners, that there has been a breach of duty, and as a direct result of that breach of duty of care, they have suffered harm.

Without access to specialist medico legal experts, they will simply not be able to put forward their case to the opposing body. The current fee cap of £1,200 is less than the cost of one average report for a medico legal expert in clinical negligence. This cap of £1,200 is supposed to cover up to two experts to report on the case initially, continue with the case, advise in conference, responding to questions, examining the client, and then attending trial. This is woefully inadequate and will hamper any investigations which the claimant may be able to make in putting forward their claim.

In contrast, the opposing party are medical practitioners, they're often able to say what the standard of care should have been, and they also have the power that they could bulk buy experts and guarantee a certain number of instructions to certain experts in necessary fields of medicine, and keep within a capped limit. The injured patient will be at a disadvantage, as they are unable to provide a bulk buy service, and therefore, there will be an inequality in the evidence which they will be able to provide, which is the key to putting forward their claim for a clinical negligence matter.

In addition, there will be a restriction to access to justice. The current fees which have been proposed will make it financially uneconomical and commercially unable for law firms in order to investigate claims and put them forward to the opponent. The effect of this is that injured patients will find it near on impossible to instruct specialist medico legal solicitors and clinical negligence specialists in order to investigate a claim against the opposing party. The solicitors will simply be unable to investigate the claim and put forward the issues to the opposing party within the restrictions that have been proposed.

Where does this leave the injured patient? Are they able to pursue the matter themselves as a litigant in person? The courts do allow for this. But the complexities in a clinical negligence case are such that they simply would not be able to get the cases off the ground. Are they to contact charitable organisations? Yes, perhaps, but they will be flooded with a vast majority of cases and will simply be unable to help them all. According to NHSLA's statistics, 60% of cases put forward to them fall within this bracket of £1,000 to £25,000. This is a very large number of injured patients who will go without legal representation should the proposals be brought forward in the manner in which they have been put.

What happens then to these patients? Will they simply not be able to make a claim? Moreover, what happens to patient safety? If an injured patient is prevented or restricted from bringing a claim to the NHS, then when or how will lessons be learned regarding patient safety? Often, by bringing a claim, a trust will then need to investigate the issues that have surrounded the matters about the complaint. What will this mean for patient safety? If injured patients aren't able to put a claim to the opposing party, to the NHS, how will lessons be learned? How will they learn from mistakes?

Although the Duty of Candour is a statutory duty, we are seeing at the moment very little effect from this. If there are further implications imposed by the fixed recoverable cost regime, there is a very real and imminent danger to patient safety. The types of cases that usually fall within the bracket of £1,000 to £25,00 are very serious cases. They often can and will involve stillbirths, early neonatal deaths, death of the elderly, and those on low income. The reason for this is that the value of such cases can often be quite minimal, they have no incomes and no dependence in which to ensure that the compensation may rise above the £25,000 limit. These are all cases that are very serious, have huge importance to the public at large, and require investigation, and also require changes in practises in medicine, if necessary. By restricting these people the access to justice, it will have an adverse effect on patient safety.

The stark reality of the proposals that are put forward by the consultation is that it will be economically unviable for solicitors to investigate and put forward cases on behalf of injured patients. This will have a dramatic effect on the access to justice for these injured patients, and also has a real risk of effecting patient safety.

As a firm we submitted a lengthy response to the Government consultation which closed on the 2nd May. Read our response here.

If these changes are bought in, cases like our client’s Stephen Farnworth would be affected by the cap. Here he talks about his case: 

and the solicitor who represented him explains how the government changes impact people like our client being able to make a case and gain the compensation they need:

Our infographic here summarises the main changes.

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