No room for negotiation

Fixed costs will impact access to justice & lead to long term deterioration of healthcare in the UK, says Nina Ali

The government propose to limit legal costs for claims below £250,000 and ensure that lawyer’s fees reflect a percentage of the compensation received by a patient so that it is proportionate.

In doing so they have already decided that “unscrupulous” clinical negligence lawyers are to blame and fired the first shot with a sensationalist and gross misrepresentation of the realities of clinical negligence cases.

Lawyer bashing

A recent press release cites an example of a lawyer “pocketing” £175,000 whilst the patient received “just” £11,800. Unsurprisingly, no other information was provided; highly relevant factors such as the medical complexity of the case, how much work was necessary to establish liability, whether independent expert evidence was needed and critically, how vigorously the case was defended or dragged out by the defendant or the NHS litigation authority (NHSLA) was not mentioned.

This led to a predictable flurry of blatantly inaccurate lawyer bashing stories, which led me to write to the health minister Ben Gummer inviting him to experience the realities of running a clinical negligence case.

I firmly believe if he was to spend some time with us, or indeed, any claimant clinical negligence practice, going through some of the cases we deal with; taking a proper look at the investigation that is often necessary; taking on board the hurdles we have to overcome in order to bring a successful action and was briefed on the defendants’ behaviour, that he would gain an understanding of the negligence encountered by patients, the tactics employed by defendants and on a more positive note, witness the direct changes to NHS procedures and improved outcomes as a result of litigation. I await his response.

Post-Jackson

I also took the opportunity to remind Mr Gummer that as a consequence of the Jackson reforms, lawyers’ fees are already being tightly controlled, capped and limited. Costs already have to be “reasonable and proportionate” before they are paid by the insurer or NHS and the courts rightly already hold the power to reduce any bill found to be excessive. The idea that lawyers can charge whatever they want is quite simply wrong.

Further, to seek to introduce further and somewhat draconian changes without waiting to see whether the introduction of costs budgeting will lead to the necessary improvement must from any angle be considered to be somewhat misguided and misconceived.

Unlike a large proportion of personal injury cases, a claim with relatively low value does not equate necessarily with low costs as “smaller” cases are often just as complex and sometimes more so than high value cases.

Complex cases

Medical negligence cases are often hugely complex. Establishing negligence is difficult and time-consuming. Further, it is almost always the case that independent expert evidence (sometimes in a number of disciplines) is needed. Another important point to note which is not mentioned anywhere in either the Department of Health’s press releases nor in any of the media is that virtually all medical negligence cases are brought by virtue of a conditional fee agreement (CFA) (no win, no fee). The lawyers are therefore only paid if the case succeeds. If the case is unsuccessful, the lawyer, who may have worked for two or three years on the same case, gets paid nothing.

NHS failings

A review of the cases in our department would show Mr Gummer just how often legal bills are massively increased as a result of the NHS’s failure to admit liability at an early stage. In a substantive action much of the work carried out by claimant’s solicitors becomes necessary solely due to the manner in which the defendant conducts its case.

Delays caused by the defendants and NHSLA can be unrelenting and are hugely distressing to clients. It should also be noted that the defendant’s solicitors are not acting on CFAs and are therefore paid regardless of the result and consequently have no incentive to deal with work efficiently or progress claims fairly and appropriately.

The danger of these proposals is that by bringing in fixed costs, lawyers will simply not be able to take on low value cases like this. Inevitably many will be denied access to justice and those most affected being the vulnerable such as psychiatric patients, the elderly and disabled, whose cases can be the most complex and challenging. These are areas where lawyers and the judiciary successfully intervene to protect patient safety.

Long term impact

It is not just the erosion of justice that is of concern; it is also the long term impact on patient safety that should worry the government and all of us. There is a great deal of evidence to suggest litigation can drive the development of better practice. The process can incentivise best practice, identify systemic failings, ensure that sanctions are taken against poor and negligent doctors, promote early diagnosis and lead to significant changes and improvements in healthcare.

At Hodge Jones & Allen we will not be advocating a compromise between the current system and fixed fees. What we have now works so we will be lobbying for an outright rejection of the proposals because there is just too much at stake for the public. There is no room for negotiation on this.

This article first appeared in New Law Journal.