Today’s revelation that over 80% of claimant medical negligence lawyers will be unable to pursue cases valued below £25,000 in damages has been echoed around the industry. RTS Media surveyed 60 of the country’s leading claimant lawyers many of whom wanted to explain why their position on fixed legal fees is so clear.
Sandra Patton, Head Of Medical Injury at Ashton KCJ in Norfolk says: “Many who ask for our help after medical injury don’t have a high value claim, but the monetary value of a claim can bear little relation to its importance or complexity. The most devastating claims can involve fairly low damages but are often of the utmost importance. Take for example the bereaved parents of a child who dies as a result of medical incompetence. The death of a child is tragically worth little in English law. Yet if no explanation is forthcoming from the hospital – an all too common occurrence – then the law is all the distraught parents have left.
“These cases can involve complicated medical issues, taking time and expertise to unpick and resolve. We have to fight tooth and nail to get justice for our clients in cases where admissions should have been made by the defendant at an early stage. This not only compounds the client’s distress but also increases costs.
“Fixed fees will hinder our ability to have injured patients treated justly. Defendants will know there is a limit as to how far we can take the case and hang it out, in the knowledge that it will run into the sand and they will never be held accountable.”
Suzanne Munroe, Head of Clinical Negligence at Switalskis Solicitors says: “The current proposals to limit costs in Clinical Negligence cases based on the value of the compensation recovered by the victims of negligence claims takes no account of the complexities of these cases and how notoriously difficult they are to prove. We usually need to engage several different experts to advise us once we have been through our internal vetting process. Although we are expert lawyers we cannot properly represent our vulnerable clients without the help of medical experts.
“In a fatal claim involving, for example, a still born baby we may need medical evidence from at least 3 experts. These cases typically settle for compensation awards of between £20,000 and £40,000. These are some of the hardest cases to deal with as they involve complex legal arguments relating to psychiatric injuries (never mind dealing with devastated parents), and yet they would be right at the bottom of the scale proposed by the Department of Health. Limiting the fees lawyers can recover for these cases means that we may find that we can no longer afford to investigate them. This severe limitation of bereaved parents’ access to justice cannot be the intention of these recommendations.
“The proposals are for fixed fees in cases up to £250,000. I have settled numbers of cases where young women have suffered awful injuries whilst giving birth, the vast majority of which are under £250,000. Most of these cases have been fully defended by the NHSLA’s lawyers almost up to trial. Fixed costs just will not allow us to fight these cases effectively for our clients.
“I sincerely hope that these proposals are not rushed through because the real victims of an ill thought out system are the vulnerable patients and not the lawyers.”
Simon Parford, partner and head of the clinical negligence department at Wolferstans solicitors says: “The Government’s proposed reforms, which would introduce a cap on legal fees in clinical negligence claims, would deny access to justice for thousands of people every year.
“The Government acknowledges that over one million medical accidents occur in hospitals every year but is now seeking to prevent many of those patients who have been injured or die as a result of medical negligence from claiming compensation. This is completely unacceptable and should not be allowed to happen.
“If the Government wishes to make cost savings, it would be much better if it was to ensure a significant change in the attitudes of the NHS and the NHS Litigation Authority. The NHS needs to learn from its mistakes to ensure that they do not occur again but sadly this never seems to happen and the same mistakes are repeated over and over again which leads to an ever increasing number of claims. The National Health Service Litigation Authority also needs to adopt a much more pragmatic and less defensive approach to dealing with compensation claims and admit liability at a much earlier stage in meritorious cases, thereby significantly reducing the legal costs involved. A combination of these two changes would result in vast savings to the NHS.
“Clinical negligence claims are often extremely complicated both medically and legally and without legal representation injured patients will find it very difficult, if not impossible, to obtain the compensation they deserve.
Paul Balen, clinical negligence solicitor at Freeths LLP said: “The Government’s proposals will deny access to justice to those the NHS has let down. It is tackling the issue from the wrong end.
“Enormous costs could be saved by improving the quality of care in the NHS to avoid negligence in the first place; learning from errors highlighted in previous cases; admitting legal liability much earlier and by a root and branch reform of the way the NHS deals with claims.
“The Government does not seem to understand that some of the most complex claims involve the death of a patient where the damages are fixed and limited by law. If it really wants to save money the Government should listen to those experienced practitioners who can advise on improving access to justice whilst reducing costs and not to those with a simple cost cutting formula or an agenda to prevent patients from claiming compensation.
“Removing access to justice for patients will simply pass the costs of their trauma to other government funded organisations who will have to deal with their upset and will remove the incentive to improve the quality of care. Having breached their entitlement to a reasonable standard of health care it now threatens to breach their human right to seek redress.”
With a strong network of media contacts and in-depth knowledge of professional services, Christina advises a range of businesses and law firms on media and business development initiatives.