We are often told of the apparently increasing cost of clinical negligence claims made against the NHS by the media and the Government. It is of course in everyone’s interest that costs are proportionate to the value and complexity of any claim made, and the Government’s response has been the proposed introduction of fixed costs in clinical negligence claims.
Since last autumn, we’ve been expecting a consultation on these proposals. But the timetable has slipped and, as with so many things in a post-referendum UK, we don’t quite know when we’ll have a definitive answer.
At first glance, the recently published NHSLA Annual Report 2015/2016 seems to lend weight to the argument that costs are escalating out of control. The Report shows an increase in Claimant costs in 2015- 2016 of 43% to £1.4 billion. Whereas, the increase is Defendant costs is a mere 16%.
But these are important figures, and they demand closer scrutiny. The NHSLA Annual Report has often been characterised as a platform for the political will for fixed fees, and this year is no exception.
The NHSLA themselves confirm that there have been more settled cases. A greater number of settled cases, particularly complex, long-running cases, will inevitably mean an increase in costs.
Another factor that may explain the apparent disconnect between Claimant and Defendant costs is the way in which Defendant costs are calculated. These costs do not include any time or expense incurred by an NHS Trust directly or by the NHSLA’s increasing in-house legal department.
We would also expect Claimant costs to be higher as a matter of course, if only because the burden of proof is on the Claimant. They must gather evidence and present their claim. They will usually need to instruct a solicitor from the outset and this will inevitably mean their costs will be higher than those of the Defendant.
It is also unclear from the Report just how many cases were needlessly defended and protracted, only to be settled just before trial. The report makes much of the fact that only 1% of cases went to trial and 60% of those were successfully defended. But we have no indication as to how many cases settled the day before trial or on the Court steps.
There is some good news in the Report too; overall, new claims have fallen by 8%. Clinical negligence claims can take several years to reach a conclusion, and so we will not see any consequential decrease in costs for some time. But it would certainly be misleading to suggest simply that costs are increasing whilst claims are reducing.
Of course, claimant solicitors cannot be complacent about the significant cost of litigation, but the NHSLA Annual Report tells only a very small part of a wider, more complex story.
Access to justice must also be protected, and although claims are decreasing, the number of safety incidents reported is increasing.
There may well be a place for fixed costs in clinical disputes, but careful scrutiny of the issues must first be undertaken to ensure the system is appropriate, does not restrict access to justice, and encourages early admissions of liability and early exchange of evidence.
We must also always bear in mind that behind the legal costs is a person who has been needlessly injured or killed as a result of negligent medical treatment. The best way to reduce the cost of such claims would be to improve standards and reduce the number of these cases.