The government are considering introducing fixed fees for clinical negligence claims valued up to £250,000 with a view to making huge savings and cutting down on the costs paid to claimant law firms. According to the NHS Litigation Authority, in 2013/14, claimant legal costs amounted to 22% of the £1.2bn expenditure on clinical negligence claims whilst defence legal costs accounted for 8%. However, these figures are grossly misleading. The Government however appear to have no appetite to correct this perception.

In a normal clinical negligence case, it is the claimant who has to do all the running and incur costs; obtaining and interpreting the medical records, instructing experts, obtaining witness statements and quantifying the case, before they are in a position to attempt settlement.

The defendant’s solicitor will generally only become involved when court proceedings are issued and the claim is at an advanced stage. They can also limit their investigations to the issues that they feel will directly impact on their own valuation of the case and ultimately their decision whether they should fight the case. They therefore can be more selective about if and when they incur costs. If a case is clear in terms of negligence and the impact of the alleged failings, the defendant solicitor may be able to settle the case soon after becoming involved, without incurring significant costs. That option is not open to the claimant solicitor, who has to investigate the case, considering all lines of defence and then prove their case on the balance of probability. Claimant costs should, therefore, not be compared with defendant costs on a like for like basis.

Clinical negligence claims can involve life-changing injuries and are complex by their nature. It is therefore crucial that specialist solicitors are able to investigate these cases thoroughly with the assistance of the best medical experts.

Clinical negligence lawyers are not the only parties concerned about the impact of fixed costs. 5 medical charities have united to urge the government to postpone plans for fixed recoverable costs for clinical negligence cases. Action against Medical Accidents, National Voices, the Birth Trauma Association, Sands stillbirth and neonatal death charity, and Meningitis Now, have written to the Secretary for Health, highlighting their concerns. They warn that some victims could be left without any legal representation if the changes are brought in. They have good reason to be concerned. If the work required to prove the Claimant’s case cannot be done for the fixed fee that has been set, then it would appear those cases will simply not be investigated, which is a huge impact on the public.

For example, if an unmarried adult with no dependents is admitted to hospital and dies within days or weeks due to negligence, the claim may be of low value, as only a claim for their pain and suffering before death might be recovered.

If multiple experts are required to prove breach of duty and causation, then pursuing such a case may simply not be feasible if only a modest fixed fee can be recovered.

Currently the costs associated with representing the family of the deceased at an inquest can be recovered as part of a subsequently successful clinical negligence case. If fixed fees are implemented, you would have to presume it will reduce the recoverability of inquest costs. This will surely discourage clinical negligence firms from representing families at inquests in the future, unless appropriate provision is made for a realistic recovery of these fees.

It would be a terrible indictment of the justice system if the fixed fee regime acted to exclude low value cases from being investigated, especially if someone’s death has been brought on by negligent failings in health care.

Irrespective of the costs associated with clinical negligence cases, the cases themselves act as an important check on the NHS, in helping to identify failings and when urgent changes and reviews are required. If these cases do not get investigated, that crucial check will be lost.

Moosa-Duke Solicitors are a specialist clinical negligence firm, who undertake many fatal cases, including representing families at inquests. We hope that the government seriously considers the potential unintentional consequences of bringing in fixed fees in clinical negligence cases and puts patients at the centre of their plans.