Patrick Oliver questions why clinical negligence costs are in the firing line again

The Department of health has now suggested limits on legal costs in clinical (medical) negligence claims where the compensation is under £100,000.

Health minister Ben Gummer hopes to reduce the £259m legal fees paid out in clinical negligence claims in 2013/14, although the NHS did recoup £74m by challenging some claims made in the same period.

As reported on the BBC, Gummer said: ‘Unscrupulously, some lawyers have used patient claims to load grossly excessive costs onto the NHS and charge far more than the patient receives in compensation.’ Examples were quoted where legal costs exceeded the compensation awarded.

Patrick Oliver, specialist Clinical Negligence solicitor at Setfords, can’t understand why such costs are in the firing line again: ‘The Jackson reforms came into play in April 2013 and since then cases have been subject to strict cost budgeting by the court and more importantly, there is a new proportionality test meant to directly address the problem of costs exceeding compensation. Indeed the new test is quite harsh and has essentially given the court an arbitrary power of bill reduction if it sees fit.’

‘The cases referred to by the Department of Health were probably from prior to 1st April 2013 and so are at least in part subject to the older and more lenient rules on proportionality. In fact so few cases have come through under the new rules, that it is impossible to gauge the impact on the level of Claimant costs generally so this announcement is entirely premature.’

‘There is a false perception that because a case might worth very little, it is worth less to the victim or it is uncomplicated. In fact, some of my most complicated cases have been of modest to low value. Complexity inevitably results in higher costs.’

‘In reality, the bulk of costs are caused by hospitals/doctors refusing to admit their mistakes earlier. As a result, more medical experts have to be instructed and court proceedings issued – these are very expensive steps.’

‘In the end, the losers will be the victims of clinical negligence – access to justice will be restricted yet further. There are plenty of new mechanisms in place to ensure that costs are kept under control – give them a chance.’

If you have had medical treatment you are concerned about. Speak to an expert and contact Patrick now on 01635 887665 or on poliver@setfords.co.uk