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Comment on the Consultation, Introducing Fixed Recoverable Costs in Lower Value Clinical Negligence Claims - Agata Usewicz, Hodge Jones & Allen

24/04/17. News that the Department of Health’s long-awaited consultation Introducing Fixed Recoverable Costs in Lower Value Clinical Negligence Claims will close on 2 May this year was met with considerable frustration by those working in the field of clinical negligence, not least because the consultation will close before the National Audit Office’s (NAO) investigation into the operations and efficiencies of NHS Resolution (formerly known as the NHSLA) will report its findings.

Whilst it is welcome news that the proposed cap is set at £25,000, rather than the £250,000 feared, there still remains a very real risk that vulnerable and already disadvantaged groups of people will simply not be able to access justice.

I was disappointed to see how few proposed exemptions to fixed recoverable costs there are in the consultation. Whilst importantly child fatalities are exempt, it is illogical not to extend this exemption to all types of fatal claim as well as claims relating to still-births, claimants lacking mental or legal capacity and claims where the client has a very short life expectancy as a result of negligence.

This is because cases involving vulnerable adults invariably require more work, often for modest damages. Take an already immobile patient with dementia who, as a result of poor risk assessment and care while in hospital, suffers a fall and fractures a hip. Such a claim is likely to be limited in value to general damages and is unlikely to be worth more than £25,000. Yet in order for the claim to succeed, the claimant, who would be unable to provide their own witness evidence, would need a litigation friend, expert medical evidence and a capacity report, plus court approval requiring the input of counsel.

Likewise, at present we act for several clients who do not speak English and as a result we need to work alongside translators. Such work would simply not be viable under the proposed fixed fee.

For the sake of patient safety, it is welcome that the consultation states that it wants to ensure that any lessons from adverse incidents are fed back to the frontline as soon as possible. It is disappointing however, that missing from the consultation is any mention of “culture change” in relation to the NHS and NHSLA. Whilst the NHSLA has recently changed its name to NHS Resolution in an effort to signal a change of approach, I see no hard evidence in the consultation that the organisation’s ‘deny, delay and defend’ culture is going to be tackled.

Instead, we’re reminded that amongst other things, the NHS introduced a Duty of Candour in 2014 to promote a focus on learning lessons from, rather than repeating, mistakes. The Department of Health has also commissioned new research into the implementation of the policies it has introduced to improve the culture of openness and transparency into the NHS, but this will not report until 2019 at the earliest. In the meantime, their solution is the introduction of fixed recoverable costs for lower value claims.

This focus on claimant lawyers as a solution for all the NHS’s woes is misguided and disproportionate and diverts ministers from the urgent need to ensure that the NHS and NHS Resolution get their own houses in order.

Any claimant medical negligence practitioner will be able to provide a plethora of examples about how the behaviour of NHS Resolution has driven up the cost of claims to the NHS. Our experience at Hodge Jones & Allen is that legal bills are often massively increased as a result of NHS Resolution’s failure to admit liability at an early stage and that much of the work carried out by a claimant’s solicitors becomes necessary solely due to the manner in which the defendant conducts its case.

I have had a client wait for over a year for a letter of response, only to receive a one page reply which did not deal with the allegations made. In another case, where liability was admitted in full and a negotiated settlement reached, the trust involved still did not make a written apology despite repeated requests made in writing. I fail to see how capping fees will help in either scenario when the only incentive in the proposals seems to be a minor discount in fees if early admissions of liability are made. In my view, if any aspect of liability is denied, or if the Defendant does not comply with the pre-action protocol, or fails, as is so often the case, to provide timely and full disclosure, then those cases should come straight out of fixed recoverable costs.

For too long the government has been scapegoating claimant lawyers, laying the blame for the escalating cost of NHS litigation on them whilst ignoring the crucial role NHS Resolution has in the process. With the timing of this consultation coming well in advance of the NAO report scheduled for June, it appears that lawyers will continue to be targeted, with inconvenient truths about the role of the NHS Resolution ignored and left unchallenged.

Agata Usewicz is a partner and head of the clinical negligence team at London law firm Hodge Jones & Allen.

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