MDDUS Chief Executive Chris Kenny urges support for Government proposals to curtail rising legal costs in clinical negligence claims in England
costs. Last year the NHS Litigation Authority (NHSLA) paid over
Taking action on spiralling T
HE UK is becoming more litigious – there is no disputing this fact. We are seeing not only a rise in the number and value of clinical damage claims but also in associated legal
£1.1 billion in claims to patients in England and this year it will be an estimated £1.4 billion. Over a third of the NHSLA budget is paid to the legal profession and most of this as so-called “adverse costs” to claimants’ lawyers. MDDUS is also seeing an ongoing rise in litigation with a 17.9
per cent increase in claims intimated against medical and dental members across the UK over 2014. Subscription rates and the cost of indemnity are directly affected by the uncontrolled growth in adverse costs levied in claims by claimant lawyers. Tese are oſten more than six times those of defendant costs and in some cases 10 times.
Fixed recoverable costs Last December I wrote to the Parliamentary Under Secretary of State for Health, Ben Gummer, in advance of a proposed consultation to impose fixed recoverable costs for lower value clinical negligence claims. Te Government is proposing to introduce fixed recoverable costs for all cases where a letter of claim is sent aſter 1 October 2016 and this would apply in clinical negligence cases possibly up to a value of £250,000 in damages. A recent pre-consultation document reported that claimant legal costs for cases managed by NHSLA in 2014/15 amounted to 83 per cent of damages awarded for claims between £50,000 and £100,000, and nearly 300 per cent of damages awarded for claims between £1,000 and £10,000. Tat’s a lot of money being diverted from patient care – and from the wallets of MDDUS members. In my letter to Mr Gummer I expressed our strong support at
MDDUS for the early implementation of fixed recoverable costs and indicated our full commitment to ensure that money expended in compensating for clinical accidents should, as far as
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possible, find its way to the injured patient and not disproportionately to the lawyers supporting those patients’ claims. MDDUS General Counsel Simon Dinnick and I reinforced these points when we met Mr Gummer at the end of January and felt that we had a good hearing. More than half our members are GPs, GDPs and private
practitioners working in England and Wales. Teir subscriptions and their cost of indemnity are directly affected by the uncontrolled growth in adverse legal costs. Tis, in turn, adds to pressure on health expenditure generally with no discernible benefit to the bulk of patients. Te pressure may be more visible in relation to the costs of hospital services via the Clinical Negligence Scheme for Trusts (CNST) but it is also a real issue in relation to primary care, a fact of which we know Government and NHS England are acutely conscious. We have long believed that the object of a fair system for
resolving clinical negligence claims should be timely, proper and just compensation for those wrongly damaged. We have had concerns for some time that the distortion in the ratio between damages and claimant costs levels is having an adversely disproportionate and harmful effect, particularly, but not exclusively, in lower value claims. MDDUS’ experience in this field mirrors the published data
from the NHSLA, both as to increasing claims frequency and the ratio of costs to damages. It is by no means unusual for costs to exceed damages by a very substantial degree, even if the claims are promptly settled with the minimum necessary investigation. Tis is due to the very considerable front-loading of legal costs by claimant lawyers before a claim is even intimated to the practitioner. Tere is no opportunity to control this cost despite robust case management by the courts and strong claims- handling procedures, proactive acceptance of liability where intimated and considerable risk management and educational work in the wider field by indemnifiers and the NHSLA. We can quote examples of cases where claimant lawyers’ bills
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