Raise cap for fixed recoverable costs in clinical negligence to £250,000, says Medical Protection Society

The new Government should make a “bold decision” and introduce fixed recoverable costs for clinical negligence claims worth up to £250,000, says the Medical Protection Society (MPS).

A Government consultation on the introduction of fixed recoverable costs for lower value claims has proposed a fixed cap on the legal fees that can be charged for cases up to the value of £25,000 in England and Wales. This is expected to result in £45million savings to the NHS a year.

But the MPS, which supports 300,000 doctors, dentists and other healthcare professionals, has stressed that a higher cap on legal fees needs to be one of a number of legal reforms if “the spiralling cost” of clinical negligence to the NHS and society is to be controlled.

Emma Hallinan, director of claims at the Medical Protection Society, said: “We fully support the introduction of mandatory fixed recoverable costs for claims of clinical negligence.

“In lower value claims it is not unusual to see lawyers’ costs exceed the compensation awarded to claimants. As an example, in a recent case involving a delayed diagnosis which settled for £4,000, legal costs of £35,263 were sought. This is simply not right.

“We do however question the £25,000 threshold proposed by Government. While we understand the argument for not capping legal costs for the most expensive and complex claims, we believe it is appropriate and viable to include claims up to £250,000. Disproportionate legal fees are still a significant issue for claims up to this value – setting the threshold at £25,000 would help, but the financial benefits to the NHS and the taxpayer would be greater if the threshold were set at a higher level.”

Hallinan added that the NHS paid out £1.5bn in clinical negligence costs in 2015/16, with legal costs accounting for 34% of that bill. She said that a higher cap would therefore present an opportunity to create a more proportionate, fairer system – while generating savings to the NHS which could be used to deliver front line care.

“It is an opportunity that should not be wasted,” she said.

“We urge Government to be bold when making its decision on the threshold. Difficult decisions about spending in the NHS are made every day, and how we approach the spending of NHS funds on lawyer fees must be one of them.”

Mark Dugdale