Is The DOH Imposing Its Will On A Broken Clin Neg System?
The Department of Health is being viewed as being heavy handed by certain groups over its plans to introduce fixed fees for clinical negligence claims. The DoH proposals are contained in its consultation, Fixed Recoverable Costs For Clinical Negligence Claims, which closed last week.
The government’s spin that fixing fees will cut spending is being challenged by The Law Society and The Association of Personal Injury Lawyers who counterclaim that it will be ineffectual in cutting costs if the overall system remains broken.
Lawyers are saying that government proposals for fixed costs claims worth up to £25,000 (a drop from £250K) would leave only the most straightforward cases commercially feasible, leaving the most vulnerable groups – the elderly and disabled – without legal solution; those who by nature tend to attract the most complex cases.
APIL President Mr Neil Sugarman pinpoints that the REAL costs of medical negligence cases are the extended waiting times for the medical records discovery and “arduous” expert reports and witnesses.
Until the overall clinical negligence process has been reviewed and changed Sugarman describes as “pointless” any attempt to impose fixed costs on a system that remains “dysfunctional.” The Law Society did in fact state ‘A fixed recoverable costs scheme could work in simple low-value cases if there is an accompanying fixed process. We believe that it will be key to set clear expectations for parties’ conduct and develop a streamlined regime that maintains equality for both sides.’
Hodge Jones & Allen (a Claimant firm) said the government’s consultation is founded on ‘inaccurate cost estimates, fanciful time analysis and flawed logic’ as evidenced in the DoH suggesting 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.
A Medical Protection Society survey found that around 75% of the public wish to see the government reduce the amount of funds lawyers can claim from the NHS pot in legal costs whilst 81% supported fixed costs.
As logical and sensible as the arguments may appear in terms of a system that needs some dire amendments, it could be tough battle ahead to turn this tide of popular support for the restriction of legal costs as an overall cost of NHS payouts.