Catherine Dixon, Chief Executive of the Law Society has responded to the Department of Health’s plan to bring in fixed costs for clinical negligence cases.   She suggests they should focus their attention on reducing negligently caused injuries, rather than the costs of Claimant solicitors.

As Catherine Dixon points out, the NHS makes negligent mistakes in approximately one in every 1,000 births. In these cases, often the tragic result is a baby suffering severe brain damage. The cost in human misery is immense, as is the cost to the NHS and, as such, to the taxpayer. Multimillion-pound settlements are granted because babies who have suffered brain damage at birth often need round-the-clock care for the rest of their lives.

Last year the NHS Litigation Authority (NHSLA) spent £1,169,506,598 on clinical negligence claims.  41% of this related to obstetric claims, mainly paid to brain-damaged children to cover the support and adaptations they need to help them live as normal a life as possible.  Bearing that in mind, you would think that every action would be taken to stop damaging babies’ brains.

Catherine Dixon notes the biggest single factor which results in clinical negligence claims for brain-damaged babies is failure to effectively monitor and/or respond to a change in foetal heart rate. Better training and adequate staffing levels, effective use of technology and robust processes and procedures would surely reduce these costs considerably.

However, rather than looking at the root cause, the Department of Health’s focus is on reducing Claimant solicitors’ costs, by setting fixed costs and capping fees for expert witnesses.

The costs involved in cerebral palsy cases are invariably high as numerous medical experts are required to analyse breach of duty and causation of the alleged negligence.  Thereafter experts are required to quantify the care, education, housing needs etc of the injured child.  However, as these claims can often settle for  millions of pounds, the legal costs of these cases are generally modest when compared to the level of damages awarded.

Catherine Dixon shares the worry that many people have about the Department of Health’s drive to reduce costs.  She states:

“it would be deeply concerning if the Department of Health’s proposals led to those who have been harmed not having access to the specialist legal advice they need. It is possible, if costs are set too low, that solicitors will be forced to stop offering services in this area as a result of being unable to recover a fair level of legal costs. If this were to be the result, it would be wholly at odds with the NHSLA’s function to pay justified claims promptly and appropriately. It is also at odds with the values of the dedicated NHSLA staff and defendant solicitors, many of whom give considerable time to support the NHS, to learn from what has gone wrong and prevent injuries to other patients”

From the Department of Health’s point of view, introducing fixed costs – which they no doubt hope will reduce the amounts paid to claimant solicitors and possibly the number of claims brought- will go some way to tackle the financial burden of clinical negligence claims. However, it must be noted that the £291,909,829 paid in costs settled in 2014/15 include expert witness as well as barristers’ fees.

Catherine Dixon emphasises it is important not to forget that clinical negligence claims are brought by people who have been injured through no fault of their own as a result of negligent NHS care and, as such, need specialist advice from a solicitor to help them get the compensation they are entitled to in law.  If the ability of Claimant’s to bring legitimate claims is compromised due to the Department of Health cost saving exercise, that would be a very worrying outcome.

Moosa-Duke solicitors are a specialist clinical negligence firm, who act for victims of medical accidents.  We are determined to continue to fight for the rights of patients when things go wrong in medical care.  We hope that whatever changes the government bring in, they ensure the injured patient is at the forefront of their thinking.