Medical negligence claims: Reducing the burden of legal costs

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How can the cost of medical negligence claims be reduced while still providing compensation to victims?

We are frequently contacted by people who have been the victim of medical negligence but are in two minds about making a legal claim. Their uncertainty is often caused by anxiety about pursuing a case against a medical practitioner they have trusted, the fear of legal costs or the length of time a medical negligence claim might take. However, in addition to these concerns people are increasingly aware from media reports of the cost of medical negligence claims to the NHS and are worried that claims are taking much needed funding away from our over-stretched health service.

In January 2017 the Department of Health published a consultation to review the current system of medical negligence claims, suggesting that it could be replaced by a new framework that is designed to reduce both the time and costs involved in bringing a medical negligence claim. The DoH estimates that the annual cost of medical negligence claims to the NHS in England “has risen from £1.2bn in 2014/15 to £1.5bn in 2015/16″, with legal costs accounting for 34% of the 2015/16 expenditure.

In an attempt to combat this, the DoH’s proposed new system would introduce Fixed Recoverable Costs (FRC) for lower value medical negligence claims (between £1,000 and £25,000 in value). They have already taken steps to address costs by replacing the NHS Litigation Authority with ‘NHS Resolution’, placing the emphasis on early dispute settlement. Although there is no suggestion that the DoH is looking into levels of compensation awarded, a review of this area of expenditure could follow.

The Medical Protection Society (MPS), an organisation which supports medical practitioners facing a medical negligence claim, is calling for immediate reforms to address the balance between the cost of bringing a medical negligence claim and the need to compensate victims of medical negligence. Among their reform suggestions is the calculation of compensation through an average of national earnings, rather than an individual’s actual wage; a minimum threshold of compensation for minor injuries and a tariff of future care costs to be set by an independent expert. Further suggestions include a cap on expert witness fees and the introduction of a limit of 10 years between the date of the incident and when a claim can be made.

Conversely, the charity Action Against Medical Accidents (AvMA) suggests that the proposed reforms effectively ignore the main reasons for the high legal costs associated with medical negligence claims – namely the high frequency of medical mistakes occurring and the policy of defending claims that clearly should not be defended. Their view is that the focus of any reforms should be firmly on reducing the number of negligent medical mistakes and not defending the indefensible, instead of restricting the right of medical negligence victims to make a claim or the amount of compensation they are entitled to receive.

Our experiences reflect the critics’ concerns. All too often we find ourselves dealing with medical negligence cases that quite simply should never have arisen in the first place. People are suffering injuries that are completely avoidable if basic standards of care and good practice are followed.

We also agree that unnecessary legal costs are frequently incurred as a result of clear-cut cases being defended.  If the medical profession held its hands up to clear and obvious mistakes in the first instance substantial legal costs could be avoided. Instead, it is common for a medical negligence claim to be resisted until the bitter end, with settlements frequently taking place just before trial, some literally on the steps of the court; by which time considerable legal costs will already have been racked up, adding to the financial burden on the NHS.

Most medical negligence claims are these days funded on a No Win – No Fee basis. This means that most solicitors will only take a medical negligence claim on where there is a clear-cut case against the medical professional. No Win – No Fee solicitors will not pursue claims that are without merit and will usually drop a claim if a defendant can provide evidence that they are not at fault. Ultimately commercial considerations will apply. If there is no merit to a claim then it simply wont be cost effective for the solicitor to fund it on a No Win – No Fee basis. Conversely, where the claim is a strong one the solicitor acting on a No Win – No Fee basis will usually have no qualms about taking the case on and pursuing it all the way to trail if the defendants refuse to negotiate.

It is a fallacy to portray lawyers as keen to take cases to trial simply in order to maximise the legal costs. In practice the vast majority of claimant medical negligence lawyers recognise that this is rarely in their client’s best interests and will endeavour to reach early, sensible and cost-effective settlements. All too frequently it is the unreasonable tactics adopted by the medical profession that causes the legal costs to escalate and this is where the greatest savings can be made.

We hope that common sense will prevail so that we end up with a system that minimises the instance of medical negligence and properly compensates victims where mistakes cannot be avoided without the need for unnecessary legal costs to be incurred.

If you have been the victim of medical negligence and would like to discuss your legal options then please call our free helpline on 0808 139 1606. We will always be open and realistic about the potential for a claim and prospects of success. We can also tell you if it is a claim we are able to fund on a No Win – No Fee basis.