Department Of Health Reports On Fixed Cost Regime Consultation


The Law Of… Ensuring Access To Justice For Victims Of Medical Negligence 

The Department of Health has responded to a Consultation into implementing a Fixed Cost Regime in medical negligence claims. Senior Solicitor and former nurse and midwife, Kay Barnes, takes a look at the report.

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Ensure Access To Justice

The findings, released today and working on the basis of introducing Fixed Recoverable Costs (FRC) in cases up to £25k in value, provides evidence of the particular complexities facing this proposal

No conclusions have been drawn on the consultation’s nine questions, but notably and not unsurprisingly, from the cohort of practising law professionals, there is a clear division between those representing Claimants and those representing Defendants. The former are 85% opposed to FRC, while the latter are 86% in favour of its implementation.

Of all the arguments against, the two which stand out are the need to sustain efforts to improve patient safety and the need to ensure access to justice for those who have suffered injury unnecessarily.

Increasing The Risk Of Error

The value of a clinical negligence claim rarely reflects its complexity. Even for highly experienced practitioners, determining the basis of a claim to pursue will often require the opinion of several different experts from different specialities.

There may also be several, if not multiple, defendants implicated making for more difficult and costly litigation. It is difficult to see how the complexity of these cases can be avoided, with solicitors being forced to work within ever tightening financial constraints, increasing the risk of error, under-settling or losing viable cases.

The risk of solicitors being forced to turn away low value cases, or having to employ cheaper and less experienced legal teams, then looks to be inevitable. This will deny access to justice for many. Particularly the more vulnerable, such as the elderly and bereaved clients, whose claims often fall into the lower brackets of quantum.

This would leave injured Parties in the hands of inexperienced legal advisors, with the additional risk of a hike in claims being brought which lack merit, in turn driving up costs and potentially undermining the cost-saving bedrock of FCR.

Historically, patient safety has been improved partly thanks to the pursuit of meritorious claims. This has had a very positive impact, which will also be compromised.

Kay comments:

"That Consultation proposals are premature rankles, with many clinical negligence cases still settling under pre-LASPO provisions and the extent to which costs savings have been possible not yet properly assessed."

"There is much work still to be done if a regime is to be implemented which maintains access to justice, ensures specialist legal advice and representation, and achieves the costs savings intended."

"The CJC has commenced drafting the terms of reference for a working group to develop a bespoke process for clinical negligence claims and a grid of costs. It is due to report by autumn 2018."

If you have suffered as a result of medical negligence, contact Simpson Millar today.

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