Monday, 22 June 2015

Saving Costs in Clinical Negligence Claims

The government is reportedly looking for new ways to reduce costs in clinical negligence claims. It is floating the idea of using a fixed costs regime. Most clinical negligence litigators will tell you that this is an area of litigation wholly unsuited to fixed costs. Each case is unique and is liable provide new and often unexpected challenges. The imposition of fixed costs will hinder the pursuit of justice for patients who have suffered avoidable injury at the hands of the state. I hope that in its attempt to reduce legal costs the MOJ and DOH will not portray clinical negligence lawyers as the enemy. The government would learn much from listening to claimant practitioners.

Many practitioners have told me that they have noticed a change in approach from the NHSLA in the last year or so - a more robust defence of claims. This might result in the defeat of some claims that would otherwise have been settled with payment of costs, but the fear is that it it will increase costs in many more cases which ought to have been resolved, or resolved earlier.

The following alternative suggestions have been made to me on twitter. By repeating them I am not endorsing them all, but at least some of them ought to be considered by the government if it is serious about reducing legal costs in this field.

1. The NHS should work to reduce the number of injuries caused by negligence. This is not a flippant suggestion. It goes to the root of the problem. Patient safety does not have to entail defensive and conservative medicine. Claims and costs can be reduced by adopting systems of work which will enhance patient safety, particularly in fields such as obstetrics where negligence can lead to catastrophic injury and correspondingly large compensation payments.

2. Patients should be informed immediately when something goes wrong and injury may have been caused due to negligence or error. Many clients - in particular in more modest compensation claims - have told me that if only the doctors or nurses had "come clean", admitted that a mistake had occurred, explained how it had happened and apologised, then they would have accepted it and would not have contemplated litigation.This is not just about having suitable systems in place, it is about individual professionals acting professionally and providing a proper service to their patients. When mistakes are made they should be candid about them.

3. NHS bodies should answer complaints meaningfully and candidly. If a complainant feels "fobbed off" by a response to a formal complaint, they are more likely to contact a solicitor; they are more likely to feel hostile to the NHS body that has not only injured them but has failed to acknowledge the harm done. The NHS should not under-estimate the anger and resentment that can be generated.

4. Defendants should commission early independent expert investigation when a claim is intimated.

5. Defendants should make early, full admissions of liability where appropriate. Where a full admission is not made, they should seek to identify clearly the issues that remain in dispute.

6. Defendants should take active steps to effect of early settlement.

7. Devise no win no fee arrangements for Defendant Solicitors. I am not sure, personally, that this would work to reduce costs in practice, but the broader point is that Defendant representatives should have incentives to achieve early resolution of claims at minimal cost.

8. Remove costs budgeting for clinical negligence claims. Many feel that this takes up additional time and effort. However, it might be said that the way to avoid costs budgeting is to introduce fixed costs. Where costs are in issue, the NHSLA should seek to avoid the "stand-off" that often occurs. It should engage positively to resolve costs disputes at an early stage. It should make generous payments on account of costs in order to avoid interest on costs payments.

9. Expand the availability of legal aid for clinical negligence claims.

10. Abolish agency fees for medical experts.

11. Repeal the court issue fees hike. In many cases the £10,000 issue fee will ultimately fall at the door of the NHS. By raising the court issue fee by thousands of pounds, the MOJ is directly increasing the legal costs of clinical negligence claims and is taking money from the NHS.

12. Stop throwing away costs by opposing reasonable applications for interim payments etc.

13. Avoid procedural point-scoring which tends to increase the Claimant's costs ultimately payable by the Defendant.

14. Revisit the way in which care reports are prepared and presented. Perhaps the same point can be made about many expert reports and the process of joint expert meetings.

15. Engage with claimants, claimant lawyers and defendant lawyers, to learn points of best practice. If we talked to each other more, we could learn to trust more and work together to reduce legal costs.


  1. (2) is interesting - theoretically, this should have already been happening since last autumn pursuant to the statutory duty of candour introduced by the Care Act s.81 and the accompanying regulations on point, particularly Regulation 20 Health and Social Care Act 2008 (Regulated Activities) Regulations 2014. This would require providers (separate and apart from the professional ethical duties on doctors, nurses and midwives) to make a full disclosure and apology in cases of moderate injury or greater as a result of medical accidents. However, from the amount of surprise most NHS staff have I discuss this duty, it seems like much is left to be desired in the implementation!

  2. (15) "Engage with claimants" - totally agree! As a Claimant of some 25 years now, with a High Court case that has been adjourned for 14 years now (still waiting for a reserved judgment to be handed down and a final order to be made since July 1999) I would love to share my experience with the MoJ & DoH of being used as a cash cow by both Defendant & Claimant lawyers & barristers.

  3. Letter of claim sent to the NHSLA 21.10.13. Three allegations of breach of duty. Letter of response 19 February 2014, breach denied in very general terms. Wrote asking them to specifically deal with each allegation. Response - for the avoidance of doubt all of these allegations are denied. Claimant's PT36 offer 10.2.14 rejected. P of C made an additional allegation of breach. Defence served July 2014 denied all allegations of breach. Directions given. D's PT 36 offer £500, no costs, April 2015. Expert evidence on breach and causation exchanged June 2015. Both reports from the defendant identify breaches of duty of care identical to 2 of the allegations of breach set out in the L of C and the P of C. Claim is worth less that £20,000. D Sol unable to consider ADR until after exchange of expert evidence. Causation is complex.