Government efforts to reduce the spiralling cost of negligence claims to the NHS will prove futile unless wider reforms of the process itself are also introduced, personal injury lawyers have warned. On the day the Department of Health’s consultation on the introduction of fixed fees for claims worth up to £25,000 ends, the Association of Personal Injury Lawyers has said the government plans to set fixed fees for clinical negligence claims and insisted they will do little to cut spending.
APIL president Neil Sugarman went further with his criticism of the proposals, likening the Department of Health’s behaviour, as the defendant in these claims, to a ‘criminal dictating the length of his sentence’. He also criticised the archaic claims process and stressed that fixing costs alone would do little to alleviate problems that cause costs to rise: problems like long waiting times for the recovery of medical records and ‘arduous’ expert reports.
Speaking about the fixed fee proposals, Mr Sugarman said:
‘It is pointless to impose fixed costs for clinical negligence work without fixing the process first. A fixed, predictable claims process needs to be developed, rather than imposing fixed costs on the existing, dysfunctional system.’
APIL has made its own counter-proposals for alleviating ‘system problems’ proposing that fixed costs should only apply where defendants admit liability in the letter of response, after the claimant has submitted an abbreviated expert report early on in the process so NHS trusts can decide whether to make an offer to settle.
APIL also wants certain cases to be exempt from the fixed costs regime namely: cases of fatalities, cases where claimants have a short life expectancy, claims which include an allegation of breach of the Human Rights Act, and cases in which there are multiple litigants.
APIL’s criticism of the DoH consultation were echoed by claimant lawyers. Hodge Jones & Allen told the Law Society Gazette the government’s consultation was based on ‘inaccurate cost estimates, fanciful time analysis and flawed logic’. It also criticised the DoH suggestions that expert evidence in cases worth up to £25,000 can be obtained for under £1,200 and that particulars of claim in complex cases can be drafted by junior fee earners.
The firm told the Gazette that the proposals were also premature, coming too soon after the civil justice reforms of the Legal Aid, Sentencing and Punishment of Offenders Act, and the ongoing inquiry by the National Audit Office into spending by the NHS Litigation Authority [now known as NHS Resolution].
However, other public bodies have backed government proposals to introduce fixed costs. Defence organisation, the Medical Protection Society, which has for some time argued for fixed fees to apply to cases worth £250,000, believes the public backs efforts to curb NHS spending on legal costs, citing
a YouGov survey of 2,000 adults, in which 82 per cent of people did not agree lawyers should receive more in legal fees than victims receive in compensation, and 81 per cent supported fixed costs for lawyers.