Government officials have called for a strict and defined limit on legal costs in claims below £100,000, claiming that in some cases lawyers bills are excessive and greater than the amount of compensation paid out.
An example of this, is a case where a patient received £11,800 in damages. However the legal fees which the NHS recompensed totalled to £175,000.
Figures reveal that the NHS paid out £259 million in legal fees for claims in 2013-14. Although by Defending claims the NHS has recouped £74m. The Department of Health says that taking these cases to court is costly and time-consuming, and believes that further savings could be made.
The proposals which will be open to public consultation later on in the year, seek to make legal fees more proportionate and reflect the amount of compensation a patient receives.
The Medical Defence Union, which provides guidance to doctors on medico-legal issues, also supported the proposal.
Dr Matthew Lee, professional services director for the MDU, said “If it was decided to introduce a well-thought-out, fixed-cost structure for legal costs in clinical negligence claims that could only be a good thing and should result in legal fees becoming more affordable and proportionate to the compensation claimed by the patient.”
However solicitors warn that placing a cap on legal costs could deny patients access to justice.
Clinical negligence solicitor, Terry Donovan from Kingsley Napley, said costs often mount up due to the delay in the NHS admitting liability which drags on cases and drives up costs.
Mr Dononvan adds “These so-called low value cases under £100,000 still involve cases where people have had serious injuries and lives have been destroyed. This sounds like another massive attack on access to justice for everybody. Fees are already tightly controlled, with the courts managing costs carefully as a result of recent reforms. Costs are already capped and limited.”
There has been an outcry by clinical negligence solicitors across the land at the idea of a fixed fee for clinical negligence cases as claims are usually complex, require involvement of a multitude of experts and take a number of years to settle. In addition, the client needs are greater as they have usually suffered from traumatic and life changing events and are vulnerable.
In recent years due to changes introduced by the Legal Aid Agency, Sentencing and Punishment of Offenders Act 2012, not only has Legal Aid been limited in clinical negligence cases to almost near existence, there were additional changes which now means that the courts are involved with budgeting for claims from an early stage. In addition Claimants now have to pay a contribution from their compensation if they successfully bring a claim.
The biggest problem created by the changes relates to less valuable claims. Action against Medical Accidents (AvMA) , which campaigns for patient safety and justice, believes that firms are now turning away lower-value claims. Additional changes such as proposed by the Ministry of Justice will simply add to the troubles faced by potential claimants in bringing a claim.