Graham Sewell* On 31 January this year, the UK government announced they’re considering a change to the way medical negligence cases are handled. Proposing a cap on legal fees for cases has been put forward as a way to combat the financial strain the National Health Service (NHS) is facing under an increase in claims from patients and other people who’ve suffered as a result of negligence.
News of the proposal has made waves across the country, and many have questioned whether it will actually help or hinder those seeking justice from the NHS. So why is this proposal being raised and what are the legal industry’s thoughts on the matter?
The proposed medical negligence fees are designed to bring the amounts into line with compensation awards for those claims between £1,001 and £25,000.
The UK’s National Audit Office (NOA) found, perhaps unsurprisingly, that the cost of clinical negligence claims has increased significantly over recent years and yet ther4e is no cap on legal costs, notwithstanding the amount actually claimed. The average legal costs are roughly double what is received by way of compensation in the smaller claims affected by the proposed changes.
In 2006/07 medical negligence claims in England amounted to £582 million, rising to £2.2 billion in 2020/21, amounting to a £433 million increase over the Intervening period and giving rise to the calls for the caps upon fees.
Maria Caulfield, the Minister for Public Safety said regarding the proposed changes: “Unfortunately, we are seeing some law firms profiting at the NHS’ expense through legal costs that far outweigh the actual compensation awarded to patients. This diverts resources from the NHS frontline as staff work hard to tackle the COVID-19 backlogs.”
What do the proposals mean so far as medical negligence legal fees are concerned?
What is the proposal?
The government has proposed a new cap which if approved, will apply to “lower value” clinical negligence claims made in England and Wales valued up to and including £25,000. This proposal is currently open to consultation. Along with this, a second proposal has been made to introduce changes that would speed up the processing of claims.
Why is the government proposing the cap?
The UK Department of Health and Social Care has reported concerns over the amount of money claimed in legal fees by medical negligence solicitors on low value claims. As there’s currently no limit on the amount a legal professional can claim, many solicitors are demanding extortionate amounts in legal fees.
One example given was a case where a patient’s solicitors claimed £72,000 in legal costs when the patient was awarded just £3,000. The government is claiming the proposed cap could save the NHS half a billion pounds over the next decade. Efforts to cut costs for the NHS are crucial, particularly given the impact the pandemic has had on funds for public healthcare.
The legal profession’s response to the news
Reports from The Law Society Gazette suggest the legal industry is alarmed by the proposal and that implementing a cap will hinder access to justice for those seeking it. While the government claims the proposal will not impede access to justice, the legal sector claim a cap will only increase the likelihood of lawyers telling people their case isn’t worth them taking on, due to the lower costs on offer.
The cost of damages are more likely to be what’s putting the NHS under financial strain, with £448.1 million paid in damages between 2020 and 2021. The number of clinical negligence claims is increasing, meaning the amount the NHS will pay in the future is set to rise.
Fixed costs are thought to be a better alternative, provided they’re able to save costs for the NHS, however there’s still concern the proposed cap is significantly favouring the defendants, which could mean an unfair outcome for those who’ve suffered.
The debate over medical negligence costs will continue and there is little doubt some new mechanism to deal with the blowout in the NHS costs will occur in some shape or form.
Graham Sewell writes on medical and public safety industrial and legal issues affecting ordinary citizens, with a particular focus upon lawsuits affecting personal injury and negligence-related claims.