Clinical negligence fixed costs will have devastating impact on access to justice and healthcare says Hodge Jones & Allen

Proposals to enforce fixed costs in clinical negligence cases will have a devastating impact on the ability of those who have suffered life changing injuries or bereavements to gain redress and on preventing future failings in healthcare services from ever coming to light.

The warning has come from the complex clinical negligence unit at Hodge Jones & Allen. The firm’s clinical negligence lawyers are concerned that the Government’s plans “demonstrate a complete lack of knowledge or understanding about how clinical negligence cases are run”.

“This isn’t the reality as those working in the field know only too well,” said the firm.

“The truth is that costs have always been controlled by the courts and further tightened as a result of the Jackson reforms. Fees are tightly controlled, capped and limited. Costs have to be reasonable and proportionate before they are paid out by insurers or the NHS and the court has the power to reduce any bill found to be excessive, a power that is used if solicitors’ costs need to be kept in check.

“The idea being perpetuated by the government that lawyers can charge whatever they want is simply wrong.”

The firm also said that the premise that low value cases are less complex and therefore less expensive to run was also false and that the capping of legal fees would leave families dealing with fatal cases unable to gain legal representation.

It has also questioned how lessons will be learned by healthcare providers if no one is able to push for answers and force better practice to be implemented.

“Inevitably many will be denied access to justice and those most affected being the vulnerable such as psychiatric patients, the elderly and disabled, whose cases can be the most complex and challenging,’ added the firm.

“These are areas where lawyers and the judiciary successfully intervene to protect patient safety.”

Hodge Jones & Allen said that more attention needed to be paid to the role of the NHS Litigation Authority and its lawyers when it came to legal costs. It said that the failure to admit liability straight away when mistakes had clearly been made, and to put in place meaningful rehabilitation speedily, was driving up costs on both sides.

Mark Dugdale