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Cap on NHS litigation claims is not the answer to better care, argues personal injury sector

Health minister says lawyers have been using patient claims to charge excessive costs onto NHS

29 June 2015

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Following the news that the Department of Health (DoH) intends to limit the costs for clinical negligence claims up to £100,000, Deborah Evans, chief executive of the Association of Personal Injury Lawyers (APIL), said any scheme should be properly piloted and should be optional, to allow patients a choice of how to proceed.

During discussions with the NHS Litigation Authority, APIL had raised concerns that any costs for lower value claims should not be fixed at a rate which would prohibit their investigation.

'No matter what, it is incredibly important that the fees allowed enable a sufficiently experienced lawyer to investigate a claim properly and get the right answer for the injured patient,' said Evans.

Health minister Ben Gummer hopes to reduce the £259m legal fee paid out in clinical negligence claims in 2013/14, although the NHS did recoup £74m by challenging some claims made in the same period.

As reported on the BBC, Gummer said: 'Unscrupulously, some lawyers have used patient claims to load grossly excessive costs onto the NHS and charge far more than the patient receives in compensation.'

An example given by the DoH was a case where a patient received £11,800, but where their legal fees amounted to £175,000.

However, Evans said lawyers' costs were subject to intense scrutiny, particularly since a new system was introduced in 2013 which means solicitors have to submit their costs budgets to the court at the early stage of a claim.

'As a defendant, the NHS Litigation Authority has the right to ask the court for justification of what it has to pay when it loses a case. The fees reflect the fact that clinical negligence cases are complicated and require a great deal of skill and investment of time and resources just to establish whether there is a valid claim,' she remarked.

Further misery

However, Nicola Wainwright, clinical negligence partner at Leigh Day, said the proposed cap could cause the victims of medical negligence further misery.

'It will restrict their ability to claim compensation to cover the costs they now have to pay because of their injuries,' she said.

Wainwright also refuted Gummer's claims that personal injury lawyers 'overcharge the NHS.'

'The fees so readily quoted by the government, without explanation, cover the cost of medical experts, barristers, court fees, VAT, and a legal team equal to that of the defence.'

She added: 'Nowhere does the government mention its role in causing legal costs to rise. It is within the power of the NHS LA to reduce costs by accepting liability earlier in clear-cut cases, yet they do not.'

Wainwright said the government also seemed to think lower value claims were somehow easier and the injured person less deserving.

'The complexity of a claim does not necessarily equate to value. The lowest value claims arise when substandard care has led to a patient's death, the most serious injury of all,' she said.

Laura Clenshaw is managing editor of Solicitors Journal 

@SJ_weekly 

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Clinical negligence