The need for access to justice in clinical negligence claims has been highlighted by the media following the recent case of William Mead, who died as a result of his GPs, out-of-hours services and a 111 call handler failing to spot he had sepsis caused by an underlying chest infection and pneumonia.
It is said that equal access to justice is the hallmark of a fair and civilised society, but the governments recent changes to court fees and proposed introduction of fixed costs threaten to make it the privilege of the wealthy.
Earlier this year the government increased fees for issuing court proceedings on claims worth £10,000 or more. For these claims the new fee is five per cent of the value of the claim, capped at a maximum fee of £10,000. Now the government want to introduce fixed costs in the vast majority of clinical negligence cases (claims valued below £250,000).
The government say fixed costs are needed to reduce the costs paid by the NHS following successful clinical negligence claims (£259m in 2013/14).
It is true that costs in some clinical negligence cases can seem high relative to the damages received by the Claimant. There are good reasons for this. Clinical negligence claims often involve complex and time consuming arguments about whether the treatment fell below a reasonable standard (breach of duty), caused a worsening of the Claimant’s condition (causation) and the extent of the loss sustained (damages). Proper investigation of these issues usually involves careful consideration of voluminous and complex medical records and the input of the Claimant and a number of medical and other experts. The work required (and thus costs) to achieve this depends more on the complexity of the case than its value.
There are already effective measures in place to ensure that successful Claimants can only recover costs for work reasonably and efficiently done. The Court carefully monitor costs and if the parties cannot agree a reasonable level of costs, then the costs are assessed by the Court.
In addition, since April 2013 in multi-track claims (where damages claimed are more than £25,000 or the case is complex for other reasons) all parties in litigatin have been required to file cost budgets from which the Court will make a Costs Management Order recording the level of costs which can be incurred by each party which it considers to be reasonable and proportionate.
If fixed costs are introduced solicitors will not be able to take on complex claims, where damages awarded will be relatively low, because the system will not allow them to recover payment for the work reasonably needed to successfully pursue such cases. The idea that low value cases are less complex and therefore less expensive to run is not correct. For example negligent treatment may have caused death. The value of the claim arising from that will depend amongst other things upon the age of the deceased and if they leave behind dependents. The cost of investigating whether the death was negligently caused will be the same regardless of what the claim is worth. Surely it cannot be just to prevent a claim being made in such a case because it is limited in terms of the damages?
If fixed costs are introduced its very likely that far fewer clinical claims will be taken against the NHS. Without successful claims the NHS is far less likely to learn from its mistakes and it is more likely they will be repeated.
We believe the government could achieve cost savings for the NHS without the denial of justice which fixed fees will cause, by introducing measures to encourage a culture of transparency and a willingness to admit mistakes, learn from them and put in place meaningful rehabilitation.
Under the present system it is often the approach taken by the NHS that leads to high legal costs. Costs are only paid by the NHS following a successful claim. Their response to claims is usually to deny liability leaving Claimants to prove their case every step of the way. That inevitably results in high costs and is to the benefit of no one.