Fixed costs on the horizon for ‘low value’ medical negligence claims

Fosters’ Head of Medical Negligence & Inquests, David Gabell explores what the expected changes to the medical negligence claims process could mean for future claimants.

This is not new news, far from it. The government have been pushing an agenda to fix claimant costs in medical negligence claims for nearly 10 years, supposedly in an effort to reduce the amount the NHS is paying out year-on-year in medical negligence claims.

It is true that the amount of money paid out by the NHS in negligence claims has grown year-on-year for more than a decade. However, it is not the case that claimant’s legal costs have increased year-on- year. In fact, since 2015 claimant costs have levelled out and even reduced slightly in 2020/21.

Just recently, Maria Caulfield MP, under-secretary of state for patient safety and primary care, has had to apologise after twice misleading MPs about the biggest driver of rising clinical negligence costs. She had, wrongly, advised MPs that claimant costs were the biggest driver. You can read The Law Society Gazette article on that here.

Without getting into the technicalities of measures already imposed by legislation in an effort to control and contain claimant costs (cost budgeting), such measures, imposed in 2013, have already had the desired effect – claimant costs have levelled out and now show signs of reducing.

What has not levelled out, and certainly not reduced, is the amount paid out in damages by the NHS to claimants in successful medical negligence claims. Year-on-year that has increased and is an eye watering amount of money – comparatively the legal costs represent a much smaller cost to the NHS than the damages they have to pay out where they have been negligent.

One would think that the governments focus should be on reducing the instances of negligent treatment in the NHS, which would make a very real difference to the amount of money paid out in damages to claimants, not to mention improve the standards of care across the entire NHS service. Unfortunately, that is not the case.

Instead, the government’s relentless agenda to limit claimants’ legal fees continues. The government recently published its proposals to bring in fixed fees in claimant medical negligence claims that are £25,000 or less (with some limited exceptions). The government deem such claims to be ‘low value’. However, for the majority of people, £25,000 is a huge sum of money and can absolutely include claims that involve serious injuries/illness and involve complicated and protracted litigation in order to succeed. Nonetheless, such claims would fall under the fixed fee regime.

The level of fixed fees being suggested to cover claimant’s legal fees is, frankly, appalling. The fixed fees suggested are so low in fact, that in a recent survey conducted by the Society of Clinical Injury Lawyers (SCIL), 70% of firms confirmed that they would no longer be able to take on claims of this value as it wouldn’t be commercially viable. This would create a massive vacuum of expertise and experience in what is already a highly complicated area of litigation. The result will not only hugely reduce access to justice for would be claimants with legitimate claims up to £25,000, but it will almost certainly result in the unintended consequence of non-specialist entities hoovering up potential claimants, with little to no consideration of prospects of success, and bombarding the NHS with thousands of unmeritorious claims.

The consultation process for fixed fees in medical negligence claims is soon to end and we will have to wait and see what the outcome will be, but it looks quite certain that fixed fees are coming, and it will be claimants that ultimately suffer.

For more information about how David and his Medical Negligence & Inquests team can help support you through a claim, please contact them for a no-obligation chat on 01603 620508 or email them directly.