Fixed Costs In Medical Negligence
The Law Of… Fixing Medical Negligence Costs
The latest proposals from the Jackson Review to reduce the costs of litigation create the risk that you will not receive all of your compensation if you win. This is the surprising result of the laudable desire to improve access to justice for all and the incorrect assumption that the complexity of your case depends only on its value.
Left unchecked, this would mean that many sorts of injuries (which have a considerable impact on you) would not be seen as being economic to take to trial. Many deserving patients would be denied the access to the specialist lawyers needed to win their case.
In contrast, the clinicians and hospitals responsible for the injuries would still be able to afford this legal advice.
Geoffrey Simpson-Scott, Partner in Medical Negligence, provides a break-down of what the Jackson Review means for anyone facing a medical negligence compensation battle.
The Problem With Fixed Costs
Clinical negligence cases are more expensive to run because the human body is complex. Any part of it can have serious problems. Medical negligence is a rarity, but it can happen and sometimes with catastrophic results.
It takes years of medical training for clinicians to become qualified to treat patients and many areas of medicine have safety procedures in place to try to avoid mistakes occurring. Ultimately, however, due to long working hours, stressful conditions and human error, mistakes can happen.
The law of negligence requires that we take reasonable steps to avoid injuring those around us. In the case of medical treatment, this is judged against the standard of what a reasonable doctor, dentist, nurse or other specialist would do in that set of circumstances.
As the patient who has experienced negligence and their legal team are not lawyers, they will need the support of medical experts to succeed in making a claim. The doctor or hospital you sue is also entitled to get their own expert evidence so their lawyers can properly advise them.
Both sets of experts need to consider all of your medical records and the witness statements of those people involved in your treatment. All of this takes time to obtain and prepare, as does valuing your case. Our legal system is ‘adversarial’, meaning that you have to prove your case and the clinician or hospital you sue is entitled to defend themselves against your allegations.
This means that justice therefore has a price.
The Solution To Medical Negligence Costs
In his Supplemental Report on Fixed Recoverable Costs (31st July 2017), Sir Rupert Jackson explains that there is a difference between the costs which are necessary to win a case and the costs which it is reasonable to expect the clinician or hospital to pay. These ‘recovered costs’ should only be a modest fraction of the value of your case.
The first part of the proposals (which came into effect in April 2013), reduce cost by shifting the burden onto patients to pay for their legal expenses insurance and the success fee out of the compensation they receive.
The report concludes that this would be an unfair system to impose on clinical negligence at present. A large amount of evidence (from both sides of the divide) was considered and this included evidence that the tactics used by Defendants tended to add significantly to the costs of running cases.
Setting a cap on the amount of costs they would pay would simply allow them to continue these practices in the knowledge that you would effectively run out of money before winning your case.
The report also recommends that Claimant and Defendant lawyers work together to find a way of making the fixed costs scheme work for cases worth less than £25,000 where liability is admitted early in the case. If this can be done, then it might be extended to similar cases worth up to £100,000.
For this to work, Defendants will need to accept that the costs savings they make will be more than the compensation they pay out. At present, their mind set tends to be that they pay less by fighting cases that they can win. At present, there is no evidence that this change of heart will prevail.
The Future For The Proposal
If no agreement can be made, then the government may simply impose a fixed recoverable costs system. About two-thirds of cases currently result in compensation awards of less than £25,000.
The list of current areas most likely to be affected is:
Additionally, patients who do not speak English as a first language are more likely to face confusion in the medical system and it takes longer to explain the complex legal issues and evidence. Translators often need to be employed as part of the work done. This is not catered for in the report’s recommendations, despite being a well-known problem.
Vulnerable adults and children also require extra assistance during the course of a case in order to ensure they receive the protection society demands they deserve. All of this needs to be catered for adequately in the proposals.
If you or a loved one has experienced medical negligence of any sort, our specialist solicitors can help you. Make sure to call our medical negligence compensation solicitors on 0808 129 3320 for a free consultation over the phone.
Geoffrey Simpson-Scott comments:
“Whilst the Report is a step in the right direction, there needs to be an effective change of approach from the Defendants in clinical negligence cases in order to reduce the costs of properly dealing with these cases. The effects of negligent medical treatment often reduce the trust patients have in the overall system.”
“Patients do not ask to receive negligent treatment and clinicians do not act negligently deliberately. They are, however, insured against the risk and so proposals which seek to limit patients’ ability to obtain suitable compensation for these injuries are very misguided.”