The UK’s leading claimant medical negligence lawyers have today shown exactly how they will respond if a fees cap is introduced by the Ministry of Justice, with over 80% condemning the plans and predicting they will no longer be able to bring cases below £25 000 in damages.
Angered by media bias in favour of the NHS and Department of Health, the industry is today endorsing a campaign to fight back.
Legal PR and marketing agency RTS Media, with the support of leading patient charities and claimant solicitors, surveyed the country’s most renowned medical negligence solicitors to properly understand the potential impact an introduction of fixed fees for cases valued above £100,000 could have.
Christina Savage, director of RTS Media explained: “It all began when the Government announced plans to curb what it deemed to be excessive legal fees in clinical negligence cases. The press was quick to catch onto a story which isn’t hard to sell to a cash strapped, NHS-loving public. This example from the Mirror is typical. Their story swallows the DoH briefing hook, line and sinker and even asks the erroneous question in its poll, ‘should injury lawyers have their fees capped?’. As we all know, injury lawyers have already had their fees capped since 2013.”
Christina says that views from the claimant side of the aisle have struggled against the media-briefing juggernaut of Whitehall and the Department of Health. “Someone needed to inject a dose of balance into the debate, so we decided to run a survey among the medical negligence elite that would explain the serious problems a fixed fee regime for clin neg could create,” she adds.
Support of leading patient charity
The RTS Media survey revealed how bereaved families could be fighting for justice without legal representation if a cap on legal fees is introduced, something Peter Walsh, Chief Executive of leading patient charity Action against Medical Accidents (AvMA) confirms.
“These early Government proposals are appallingly poorly conceived and it is hugely worrying that no consideration at all is given to the principle of access to justice,” says AvMA chief executive Peter Walsh. He adds: “A cap of this kind on legal fees in medical negligence cases could result in widespread injustice for some of society’s most vulnerable and deserving families. It would also make learning for patient safety less likely.”
The survey found that if costs were fixed from the outset, 83% of claimant lawyers said they would take on fewer claims worth less than £25,000 in compensation, with only 10% saying a cap would not affect them and 7% remaining undecided.
Peter Walsh adds: “Lower value compensation claims often revolve around the most grievous lapses in patient safety. Damages are determined based on an individual’s loss of earnings and whether someone is dependent on them. The families in cases involving the death of an elderly relative, stillbirths and the death of young children would be left pursuing the truth without the help of a legal expert. This would be impossible for most and even those that try would most likely have to give up when faced with a wall of defendant NHS lawyers skilled in stonewalling cases until people run out of steam and money. Surely this can’t be what the public wants in the wake of the Mid Staffordshire hospital scandal.”
Medical negligence lawyer, Peter Stefanovic from Simpson Millar has been campaigning against the cap on behalf of families. He explains the issue: “When an elderly patient dies and there are no dependants which is often the case, the monetary value of any medical negligence claim is limited to funeral expenses and general damages. As a result, the value rarely exceeds £10,000.
“Compensation, however, is seldom the motive behind making a claim; the family wants answers and justice for the person they have lost. For them, it means forcing the hospital to accept responsibility for its failures and, unfortunately, that often requires a lengthy investigation with the help of specialist lawyers. Legal fees are only paid by the NHS when they lose. After several years of vigorously defending a case despite mounting medical evidence, costs have undoubtedly escalated beyond the claim’s monetary value. If a cap is introduced, all the NHS has to do is deny liability across the board; claimant lawyers will then rarely be able to even cover their expenses, and the Government knows this.”
AvMA chief executive Peter Walsh continues: “Without specialist medical negligence lawyers pursuing claims on behalf of patients that have either died of been left injured as a result of poor hospital treatment, the NHS won’t be forced to learn from cases gone wrong. When doctors deny their mistakes, it is only people’s ability to challenge them through a legal process that sheds light on malpractice and enables lessons to be learnt.
“The Department of Health seems to ignore the fact that unreasonable denials of liability and delays in settling claims is the biggest reason for high legal costs. NHS defendant solicitors have adopted a strategy of contesting liability in the many cases where negligence is eventually admitted and should have been recognised and admitted earlier. An early admission of liability could produce a saving of 90% on the total legal costs, yet this fact seems to be gaining no traction at all with the Government. It goes without saying that the far worse human cost, as well as all of these legal costs would be avoided if the negligent treatment was prevented in the first place.”
Action against Medical Accidents (AvMA), the charity for patient safety and justice, is calling for the Department of Health to engage in a more constructive discussion with stakeholders to determine how costs could be reduced without eroding the legal process that delivers justice for so many people who have been injured or have lost love ones as a result of medical negligence.
“The Legal Aid, Sentencing and Punishment of Offenders Act 2012 has already had a negative impact on people with low value claims who are now struggling to get legal representation,” adds Peter Walsh. “I am baffled by the notion that legal fees in medical negligence cases need capping at all when the courts already hold the power to clamp down on excessive legal bills and the NHS Litigation Authority can and does challenge when, very rarely, there have been excessive costs claimed.”
Peter Stefanovic adds: “The Government is doing everything it can to deny victims of hospital blunders access to justice. These proposals are unfair, unjust and will deny thousands of families access to justice for the loved ones they have lost. I have worked on many cases that raised important issues about patient care, yet didn’t necessarily command a high settlement. That didn’t make them any less worthy of justice.
“Compensation is not the primary motive when a loved one is lost because of negligent hospital care. It’s about getting answers and making sure that the hospital accepts responsibility for its part in the death of a patient.
“The value of the case in monetary terms should not be allowed to diminish the importance of it to the family involved. Under the Government’s new proposals hundreds of families would be unable to find a lawyer to represent them, as this survey clearly demonstrates. Perhaps that is what the Government wants.”
Already, some medical negligence solicitors say they only take on cases where they anticipate an early admission of liability, which begs the question: will only those with open and shut cases be able to secure legal representation in the future?
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.