The claimant sector is understandably concerned by the noises coming out of the Department of Health, indicating that clinical negligence cases worth less than £100,000 may be subject to fixed fees.
With a £259m annual bill [http://www.lawgazette.co.uk/law/nhs-clinical-negligence-costs-under-the-scalpel/5049370.article] for claimant costs, radical measures are inevitable. And a cynic might point out that slashing claimant lawyers’ fees could have a double benefit for the public purse – not just reducing legal fees, but also shrinking the amount of compensation it needs to pay out to victims of clinical negligence.
The prospect of claimant representatives having to conduct clinical negligence claims under the restrictions of a fixed fee is worrying. The NHS Litigation Authority has a reputation for taking a tough line on claims – it is a deep-pocketed defendant with public money to protect – and does not tend to make early admissions of liability, or be particularly forthcoming with information. These tactics become quite dangerous where the claimant is working for a fixed sum that could quickly get used up.
Any fixed fee for claimants would need to be counterbalanced by very tight controls on the claims process – probably best achieved by a protocol and portal system. There may be a silver lining in this, as the strong incentive to stay in the portal process could encourage the NHSLA to admit liability at a much earlier stage, which would surely benefit negligence victims.
Many clinical negligence lawyers will be horrified by the notion of these difficult and complex claims being given the ‘portal treatment’. But costs do need to come down – and if a fixed costs claims process cannot achieve that, government may ultimately turn to an even more drastic option, a statutory compensation scheme along the lines of the Criminal Injuries Compensation Scheme. That is not something that most lawyers – or their clients – would want.
So why is the cost of legal claims against the NHS on the rise? There are myriad factors at play. As I mentioned above, the NHSLA does undoubtedly drive up costs itself through its hardball approach, though it has its reasons for doing that. A health system that is under-resourced and medical staff who are overstretched will lead to more mistakes; and where those mistakes are made, people are now more knowledgeable about the fact that they may have a legal claim.
There is also more law firm advertising targeted at clinical negligence, as many firms seek to diversify into this area, which is currently more lucrative than the fixed-fee road traffic accident field. Perhaps it is ironic that the government’s attempts to cut insurers’ legal costs in RTA claims have pushed up legal costs against its own health service.
But for law firms, while making the jump from RTA to clinical negligence may look like a smart move on paper, the reality is very different. Causation is often difficult in clinical negligence cases, because your client was probably already ill; the hurdle for establishing breach of duty against doctors is very high; the cashflow demands of clin neg claims are considerable; and your clients need extra care, because they have already been let down by professionals once.
Many firms that have sought to enter the clin neg arena may soon find that they lose their appetite for the work. But those that remain will be stuck with a fixed fee regime that will need to be navigated carefully if they are to avoid their clients being let down by professionals a second time.