No fixed clinical negligence costs without a fixed system, says APIL

The cost of clinical negligence claims will never fall unless the NHS Resolution’s bad practice is brought under control, the Association of Personal Injury Lawyers (APIL) has warned.

In responding to the Department of Health’s consultation Introducing Fixed Recoverable Costs in Lower Value Clinical Negligence Claims, APIL has said that a fixed, predictable claims process needs to be developed, rather than imposing fixed costs on the existing dysfunctional system.

“It is pointless to impose fixed costs for clinical negligence work without fixing the process first,” said APIL president Neil Sugarman.

“Taking an axe to how much the Department of Health pays does nothing to tackle the factors which drive costs, such as the ludicrously long waiting times for the recovery of medical records, or arduous expert reports. We propose that a claimant should submit an abbreviated expert report early on, for example, so that NHS Resolution as it is now called can decide early on whether to make an offer to settle.

He also said that fixed costs should only apply where the defendant admits liability in the letter of response. APIL also proposes that cases of fatalities, claimants who have a short life expectancy, claims which include an allegation of breach of the Human Rights Act, and cases in which there are multiple claimants or defendants, should all be made excempt from a fixed costs regime.

“Of course, while an efficient process is important, we must not lose sight of the fact that the injured person is at the heart of the compensation system,” said Sugarman.

“The Department of Health seeks to advance its own cause, as a negligent wrong-doer, by changing the way in which injured people can succeed and the costs they can recover. It’s like a criminal dictating the length of his sentence,” he said.

Mark Dugdale