NHS Litigation Authority calls for cap on clinical negligence fees

The NHS Litigation Authority (NHSLA) has called for the Government to cap the level of costs for lawyers representing patients.

The body issued its plea in an article that appeared in The Sunday Telegraph on 1 February, in which it also accused lawyers of charging the health service extortionate costs, including one case of a solicitor filing £1,440 an hour in costs.

The NHSLA has also claimed that some firms are claiming costs and fees worth up to 10 times more than the damages awarded to victims of clinical negligence.

Simpson Millar was the firm accused of attempting to charge £1,440 an hour, with total costs of £100,000. The case eventually settled for £30,000.

It also singled out Rapid Response Solicitors, from Hull, for claiming £2 million in costs for 47 cases over the past three years, with the claims settled at £539,563, and Express Solicitors for having claimed £1.4 million in costs for 30 cases since 2010. Those costs were eventually whittled down to £779,063.

The cost of compensation claims against the NHS last year reached £680 million, including £196 million for claimants’ solicitors, according to the NHSLA.

Catherine Dixon, the head of the authority, said that some firms were trying to maximise their profit at the NHS’ expense and that the NHS could save £69 million each year if the cost of lawyers representing patients was capped at the same level as the cost of the health service’s lawyers, plus an extra 20 per cent.

“It seems to me that it is out of kilter with the level of damages they are seeking to recover from their clients and defence costs,” she told The Sunday Telegraph.

“I don’t think that charging significantly higher costs is appropriate, particularly against a body like the NHS which is looking after the health of the nation.

“Access to justice is important, and it is right that claimants’ solicitors are paid a fair amount for the work they do. But I would rather see the excessive amounts we’re spending on costs going into patient care.”

In response, both Simpson Millar and Express told Litigation Futures that the client always came first in any case and that the costs were not ones that they recognised.

James Maxey, in a written response to the Sunday Telegraph’s letter pages, wrote: “I used to take the angry ambulance chaser jokes in good humour but no longer. I’ve spent too much time with the families and victims of clinical negligence, some of them with lasting disabilities that words like ‘devastating’ just cannot convey.”

He went on to say that adverse incidents had risen year on year in the NHS and that if there was less negligence then there would be less successful claims.

He also called another claim made by Catherine Dixon, that clinical negligence lawyers were front loading costs by hiring expert witnesses and conducting extensive investigations for what she believed were relatively low value claims as “preposterous”.

“It is essential when taking on a potential claim for a client who believes they have been failed by the NHS to establish exactly what happened, which means requesting that person’s medical records at the very least,” he wrote.

“It is frequently then necessary to instruct an expert in the appropriate field of medicine – often a doctor who practices within the NHS themselves – to consider the evidence and advise us as lawyers whether in fact the care afforded to the client was below par or not. Only then can we make a decision as to whether or not the client has grounds for compensation.”

Mark Dugdale