Government backs cap on legal fees in clinical negligence cases

The government is to set up a working group to examine how to introduce a cap on legal fees in clinical negligence cases involving claims of up to £25,000.

The decision was put forward in the Department of Health and Social Care’s (DHSC) response to a consultation that it launched over a year ago in January 2017. The DHSC was due to respond to the consultation last summer, but postponed its decision.

The working group is expected to report back this Autumn with recommendations on a system for claims up to £25,000 and other improvements that could be made to the clinical negligence process. These will be considered as ‘quickly as possible by the government’, the DHSC said.

The move to cap legal fees was welcomed by the medical defence organisations, however they warned that the limit of £25,000 was insufficient and the cap should be introduced on claims up to £250,000.

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 £1.7bn 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.

‘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.’

Fixed costs

Dr Matthew Lee, MDU professional services director, said: ‘Proposals to make claimants’ lawyers costs more proportionate to the compensation their clients receive were first mooted back in 2015. We hope that things will move ahead faster now.

‘Fixing costs for legal fees will only make a difference if the threshold for clinical negligence claims is set at £250,000, not £25,000 as proposed last year by Lord Justice Jackson. Patients who believe they have been negligently harmed must have access to justice, but fixed costs are fairer and will help to establish some much needed balance to the system.’

MDDUS chief executive Chris Kenny said: ‘Fixed recoverable costs in clinical negligence cases are vital to halt the runaway increase in claimant costs and to protect resources for the delivery of frontline NHS care. We remain of the view that a cap of £250,000 is both necessary and proportionate.

‘However, disproportionately high costs charged by claimants’ lawyers are only part of the problem and won’t make enough of a dent in the NHS’s total estimated clinical negligence liabilities of £65bn. The cost of litigation is becoming unaffordable for the medical profession and the NHS. The government needs to take more decisive action. We urgently need more radical legal reform to restore balance to the system for clinical negligence claims.'

Spiralling clinical negligence costs have lead to huge increases in medical indemnity fees for GPs. Last year a GPonline poll found that three in five GPs had cut the number of sessions they worked or turned down extra sessions because of indemnity costs and that in 2017 indemnity fees rose by more than 20% for a quarter of GPs.

Health secretary Jeremy Hunt announced plans for a state-backed indemnity scheme for GPs, which he has said will be in place by April 2019.

Read more
What we know so far about plans for state-backed GP indemnity

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