25 September 2017 | Comment | Article by Elin Davies
The campaign against fixed fees for clinical negligence claims has been in full swing in Parliament recently.
A number of campaigners, including many members of the Society of Clinical Injury Lawyers (SCIL) were present during the meeting at Westminster chaired by MP Chris Matheson. The group represents approximately 100 firms who specialise in clinical negligence claims.
Fixed recoverable costs in relation to clinical negligence cases has been a topic under discussion for some time. Lord Jackson recently recommended in his report published in July 2017 that a working party be set up by the Department of Health and the Civil Justice Council. This would include both claimant and defendant representatives with the aim of developing a bespoke process for handling clinical negligence claims valued at up to £25,000.00 and that this process should have a grid of fixed recoverable costs attached.
It was clear from the discussions at Westminster that claimant clinical negligence lawyers strongly opposed the notion of a fixed cost regime for these cases.
Small or low value cases are often as, if not more, complicated than high value claims and just as important to the patient. There are considerable hurdles to overcome in order to bring a successful action and the full onus of proving a claim is on the patient. A claim with relatively low value therefore does not mirror the amount of work and effort which is required to properly investigate the case.
Lord Jackson has himself acknowledged within his report that modest value cases are indeed complex and of huge concern to those involved. Many skilled clinical negligence lawyers will not be able to pursue these cases if fixed fees are set. Those who have suffered bereavements or negligent harm through no fault of their own may not be able to seek specialist assistance at a time when they need it the most. Fixed recoverable costs for these cases therefore is not the answer and could massively impact access to justice for these patients.
Given that the NHS pays costs as a direct result of negligent care, the Government should be looking at tackling the underlying causes of the rising number of medical negligence cases through regular training and reform. SCIL chairman Stephen Webber who is also Head of our Claimant Division at Hugh James, was present during the meeting and said;
‘We believe the most important issue here is patient safety – if there can be improvements and lessons learnt then the level of negligence will be reduced. That must be the starting point for reform’ Mr Webber went on to say that ‘ I do not accept the position of others who say FRC is inevitable and give up the fight..’
The group will continue their efforts to raise the profile of their campaign against fixed costs with the support of many claimant clinical negligence lawyers. The Department of Health’s response to a consultation on fixed fees for clinical negligence claims is awaited.
For more information, please visit our Medical Negligence page.