Fixed Costs: No Solution for a Broken System

In January the Government introduced a proposal for a fixed cost scheme for clinical negligence claims valued between £1,000 and £25,000. The goal is to reduce the legal costs arising from claims; the government reporting that these have doubled since 2010. However, the proposals put forward have been subject to a lot of debate and have a number of potential issues and negative impacts on those affected by clinical negligence. Claimant solicitors and barristers have highlighted these in response to the consultation.

What impact would this have on claimants?

Fixed costs could be extremely problematic for patients and create extra barriers preventing those injured from seeking legal remedies. If solicitors’ fees are significantly reduced then this will reduce the number of lawyers doing this kind of work, making it harder for people to find a solicitor to represent them. While many people won’t mind the idea of there being a few less lawyers in the world, in this case the patient’s ability to get the appropriate compensation for their pain, suffering or injury will be jeopardised. As is often the case, the impact falls most heavily on the most vulnerable in society, including the elderly and bereaved.

Why one size doesn’t fit all

Most clinical negligence claims arise from severe pain, suffering and life changing injuries that have been sustained as a result of negligent treatment. Some cases are quite clear cut but others are more difficult to investigate and require more time. For example, a more complex case could need the instruction of multiple professionals from different areas of medical expertise, forming a team to help the patient along their course of treatment and recovery. These experts are then needed to produce detailed evidence in the claim, adding to the cost of investigation but ensuring that the right amount of compensation is achieved at the end of the case.

Patients are individuals and as each circumstance is unique, injuries, rehabilitation and treatment all need to be treated as such. A fixed cost scheme where “one size fits all” is clearly inappropriate when each case has different levels of investigation depending on the severity and complexity of the claim. For instance, a delay in diagnosing a medical condition is far more complex to investigate than if the wrong finger on a patient’s hand was mistakenly operated on; the questions of why, how, and what are the future implications of this mistake are more easily answered in one case than the other. Awarding costs just on the eventual level of compensation feels like a very blunt tool indeed.

These proposals are also considered by many to be a potential risk to patient safety. Depending on the negligence, the level of compensation for a claim will vary. If a fixed costs scheme was to be introduced, lower value claims may not be ‘economic’ to pursue, and the negligence may never be reported or acted upon. Consequently, the NHS wouldn’t learn from the mistakes or negligence, which could result in the same mistakes being made over and over again.

What are the arguments in favour?

One of the arguments in support of the proposals is to ensure proportionate costs of investigation and the case as a whole. This comes from the allegation that claimant solicitors’ drive up costs to achieve a higher profit. In some circumstances lawyers do find that the costs of the investigations are higher than the final damages received for a claim; this is because the burden is on the claimant solicitor, not the defendant, to establish and prove their case, ensuring the patient is appropriately compensated for their injuries. If more evidence is needed to prove a claim, then costs need to increase to attain that additional evidence.

Defendants and their solicitors also have a part to play in driving up costs; i.e. not responding to the claimant solicitor’s letters or requesting that the defendant’s get their own expert evidence; conduct that can also increase and duplicate costs unnecessarily. Defendant solicitors can also increase costs by defending good claims; that is fighting against an admission of fault when there was clear negligence and only agreeing to consider a settlement at a late stage. The case then drags out longer towards trial, incurring unnecessary costs for both sides. It is always worth asking how the legal process, and so the costs incurred, can be made more efficient but this needs input from both sides of the argument.

Prevention vs. Compensation

Focusing on the negligence itself, it has been argued that the monies paid out for successful claims would be better spent on patient safety to ensure these incidents do not occur in the first place. However, bringing a claim is the last resort for most patients. Before pursuing a claim, most try to resolve their complaint without lawyers but have lost hope in the NHS providing resolution, apology or explanation as to what has happened to them. A lot of questions are left unanswered and this could be avoided if the NHS improved patient experience through their complaint handling procedures and investigations. Some find that the NHS only really starts engaging with their problem when a solicitor has been instructed. With healthcare receiving less funding from the government at present, the risk of more system failures, mistakes and negligence only increases. A scheme such as fixed costs with the intention of reducing the price to be paid for mistakes will not in our view fix an already fractured system, but make life harder for the victims of negligence.

What the Future Holds

A decision has not yet been made on the fixed cost proposals but the government is considering them. A working group has been set up to review and examine the proposals with both claimant and defendant solicitors and barristers giving their perspectives. The recommendations will then be published in August 2018. Once that process is complete, the government will consider next steps. However, without a plan to reduce clinical negligence or improve patient safety in place, the introduction of a fixed costs scheme serves little purpose in cutting down costs; without the reduction of negligence itself the number of potential claims will surely continue to grow.

We sincerely hope that the government looks at both sides of this question; whilst rising costs are certainly an issue we can’t help but think the more pressing concern is why these instances of patient failure are still happening and whether, in the end, it will be the victims of negligence who will lose most because of this scheme.

For more on Irvings Law’s medical negligence team click here.

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