Expert group to look at fixed recoverable costs for clinical negligence

The UK government is forming an expert group to work on introducing a new cap on the amount of costs that lawyers can recover in clinical negligence cases.

Fixed recoverable costs for clinical negligence claims were hanging in consultation limbo and believed unlikely to come in effect until 2019 at the earliest, but the government’s response was published on 15 February.

The consultation response acknowledges a number of developments since it was launched in January 2017, including the change in the personal injury discount rate and Lord Justice Jackson’s civil litigation costs review.

Lord Justice Jackson recommended that the Civil Justice Council and the Department of Health should establish a working party, including both claimant and defendant representatives, to develop a bespoke process for clinical negligence claims initially up to £25,000.

The government said: “The department intends that the Civil Justice Council working group will build on this work and on further progress made through this fixed recoverable costs consultation and the independent cost analysis work by Professor Fenn.”

“It is significant that whilst acknowledging there is further work to be done, Lord Justice Jackson is broadly supportive of the application of fixed costs in clinical negligence and in the process of his work found a number of legal experts, both claimant and defendant who were optimistic.”

Work has already been completed on the draft terms of reference for the working group, appointing a chair and deputy chair, and seeking members to ensure that the relevant expertise is engaged and all sides are represented.

According to the Medical Protection Society (MPS), the proposed cap applied to all cases up to £25,000 will help to save the NHS up to £45 million a year.

Dr Rob Hendry, medical director at the MPS, said: “We welcome the government’s commitment to a fixed recoverable costs scheme for clinical negligence claims. From the £1.7 billion the NHS paid out on clinical negligence costs in 2016/17, legal costs accounted for 37% of that bill. It is right that we question whether such costs are sustainable for the NHS, and whether this amount of NHS money should be spent on lawyer fees.”

“The creation of an expert group will help to drive a fixed costs scheme forward, ensuring the threshold and process for clinical negligence cases is considered and implemented swiftly.”

Hendry added: “We had hoped to see a bolder decision on the threshold with cases up to the value of £250,000 included in a scheme, however a £25,000 threshold is a positive first step—one which we hope will be reviewed and possibly increased over time.”

“We also welcome the government’s plan for a wider, cross-department strategy to drive down rising clinical negligence costs. Indeed, a fixed recoverable costs scheme is one of a number of reforms that will be needed if we are to really tackle the issue. Our Striking a Balance campaign sets out the package of reforms we believe could achieve a more sustainable system.”

Commenting on the announcement, Brett Dixon, president of the Association of Personal Injury Lawyers, said patient safety must not pay second fiddle to NHS costs reforms.

“We have advised the government that there is scope to streamline the procedures and cost involved in lower NHS value claims, but that is only part of the story,” said Dixon.

“So-called NHS ‘never events’—injuries which are serious and largely preventable—have stayed at the same level in the past two years. Analysis of information provided by NHS Resolution in response to a freedom of information request shows that failures of maternity care represented a quarter of the damages paid out to injured patients in 2016/17.”

“Failure in maternity care has been identified for years as a major problem for the NHS yet little seems to have changed.

Dixon concluded: “The urge to streamline costs and procedures must go hand in hand with a real, systemic, consistent reduction in avoidable injury. Only then will the NHS become more efficient, and only then will we see an end to the needless suffering of patients.”

Mark Dugdale