Clinical Negligence Reforms May Impact Access to Justice

25 November 2015

Recent announcements from HM Government have revealed their intention to address the costs of medical negligence claims against the NHS.

They intend a two pronged approach against patients claiming for medical negligence, the first component is on the introduction of a systemised portal approach to regulate the process and timescales for claims below £250,000.

The amount of costs which Medical Negligence Solicitors and Lawyers are able to recover for pursuing claims on behalf of patients who have suffered injury because of medical negligence, is the second element.

The overriding policy driver behind the changes is to save the NHS, according to the Department of Health, a reported £259 million. It is not clear how the proposed approach will root out the serious underlying issues of medical negligence, prevent injury to patients or improve treatment and care.

Much of the recent impetus regarding these proposals emanated from the Carter Report which examined ways in which the NHS could save up to £5bn per year. In short the Clinical Negligence Bill may be forensically analysed because this is one area where there is strong governmental belief that medical negligence claims divert funds away from patient care.

The NHS Litigation Authority’s figures for 2013/14 confirmed that Medical Negligence Solicitors received approximately 22% of the £1.2bn costs of dealing with medical negligence claims.

The consultation process began in November 2015 and ends in December 2015, which may give a real indication that this is about savings rather than improving patient care. It is expected to be rolled out to all medical negligence cases where the letter of claim is sent after 1 October 2016. The UK Government performance and track record on portalising personal injury claims will give a good indication as to how medical negligence claims will be dealt with within this new regime.

The Department of Health has issued figures as to the proportion of costs received by Medical Negligence Solicitors to damages received by patients who had suffered injury as a result of medical negligence. When compared with damages payable, the Department of Health points out, the claims costs are disproportionate.

Their figures for 2013/14 showed Medical Negligence Solicitors claimed:

  • 54 % of damages between £100,000 and £250,000
  • 74 % of damages between £50,000 and £100,000
  • 107 % of damages between £25,000 and £50,000
  • 153 % of damages between £10,000 and £25,000
  • 273 % of damages between £1,000 and £10,000

However, these figures cannot be looked at in isolation and have to be viewed against the robust stance taken by the NHS Litigation Authority and their Solicitors in defending these claims.

Moreover, there is no correlation as between the value of the claim and its complexity. Medical negligence claims do have a vital role in ensuring that all medical negligence claims are properly investigated, improve standards and providing a lessons learned environment which can only be good for patients injured as a result of medical negligence.

We shall have to wait for disclosure of the detail and anticipate that this will be not long after the closure of the short consultation period. However, a fixed costs regime, limited expert use and capped expert costs may have a direct impact on access to justice. We very much hope that these potential consequences will be heard, as the measures are debated in Parliament.

It is part of the Co-op’s ethos and values to provide help and support in enforcing legal rights so as to prevent injustice. We will always strive to secure the best possible compensation and rehabilitation support for our clients.

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