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Legal costs in clinical negligence cases

03rd July 2015

This past week has seen some wildly inaccurate media reporting of the legal costs involved in clinical negligence claims. The Government is proposing a fixed fee system which will heavily reduce the costs paid to solicitors who act for successful claimants following medical accidents and errors.

In 2012/2013 the NHS paid £1.258 billion to settle claims for medical negligence. Of that, £258 million, or just over 20%, was paid in legal fees. Many successful claims are initially rejected by the NHS, increasing the legal costs. Such claims are often complicated and require specialist medical opinion to be obtained. Claims are defended by the sizeable NHS Litigation Authority solicitors.

Bringing a claim is, understandably, beyond the capability of most lay people. Without experienced lawyers the majority of successful claims, often following mistakes resulting in life altering injuries, would never proceed. It is noteworthy that some 70% of claims do not succeed as they cannot be proven. In most such cases the lawyer acts for free under a “no win, no fee” agreement. The lawyers’ fees are only paid by the NHS if the claim succeeds

Fixed fees for injury claims resulting from car accidents and work related injuries were introduced a few years ago. In many of these cases the injured victim has to contribute towards the cost of bringing a case from his/her compensation. If fixed fees are brought into clinical negligence claims the same will occur.

It is not generally understood that solicitors’ fees for representing often vulnerable, injured people are already heavily scrutinised. Costs have to be “reasonable and proportionate” before they are paid by the insurer or NHS, and the Courts rightly reduce any bill found to be excessive. Costs are often increased by delays in admitting liability or refusals to properly compensate the victim. The presumption that lawyers can charge with impunity is wildly inaccurate and untrue.

It is right that Government should look at ways to reduce the cost of running the NHS. However, introducing a system which in effect requires the victim to pay part of the cost of a successful claim, rather than the perpetrator, is wrong in principle and fails to address the real problem. If annually the NHS pays over £1.25bn in compensation and costs one might argue that Government’s focus should be on preventing the errors in the first place, rather than further punishing the victims.

Paul Lewis, Partner, Personal Injury – Accident Management 

Personal Injury Blog
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