Fixed legal costs: a danger to patient safety and justice

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A leading patient safety charity has warned the Government against capping legal costs for medical negligence claims.

As reported in the Telegraph today, Action Against Medical Accidents (AvMA) are strongly concerned that a system of fixed legal costs for claims worth less than £25,000 could deny many patients access to justice.

Speaking to the Telegraph, AvMA Chief Executive, Peter Walsh, said: “This would lead to massive lost opportunities to learn from mistakes”, alluding to a ‘deny and defend’ attitude towards medical accidents within the health service.

The Telegraph’s piece features the story of a mother, Lisa, whose daughter Leanne was stillborn in April 2014. Days before the birth, hospital staff had ignored Lisa’s complaints of abdominal pain and sent her home without a scan.

An inquest found that Leanne died from a lack of oxygen six hours before she was delivered.

The hospital trust paid Lisa £15,000 in compensation after lawyers took on the case, which lasted for three years. However, for Lisa the case wasn’t about money: “For me this was about getting answers and trying to make people accountable, to stop other people having to go through this,” she explains. “What I wanted was an acknowledgement of what had happened, an apology and changes to make sure this didn’t happen again.”

Why is the fixed legal costs system dangerous?

It’s a common assumption that the more serious or complex medical errors are, the more compensation is available for those affected.

However, the reality is that the way damages are calculated in the UK means that victims of life-changing clinical errors may not be eligible for an award that passes the £25,000 threshold.

Using the example discussed in the Telegraph article, newborn fatalities or stillbirths caused by medical mistakes do not generally lead to high levels of compensation.

Yet investigating avoidable infant deaths and getting answers for bereaved parents is one of the most important roles a medical solicitor can fulfil.

If the fixed costs system is introduced, parents’ solicitors will either have to investigate stillbirths on a shoestring budget, or otherwise be unable to help at all.

Meanwhile, solicitors for the health service will not face the same limits on time or money they can spend gathering evidence or preparing arguments – creating an ‘inequality of arms’ between the parents and the hospital.

Finding another way forward

The Society of Clinical Injury Lawyers (SCIL), the professional body for medical negligence solicitors, believes there is an alternative to capping legal costs for claims.

They argue that if NHS Resolution – the organisation which defends NHS claims – and the hospital trusts themselves were to admit responsibility earlier and learn from mistakes more quickly, the legal process could be shortened or avoided altogether, thus reducing costs on both sides.

Like AvMA, SCIL is also worried that the changes could stop patients from getting justice and answers when they are entitled to do so.

Richard Harries, Partner in our Medical Negligence team and SCIL executive committee member, reflected on these concerns: “I’m really very concerned that improving patient safety and access to justice are not at the centre of the Department of Health’s proposals,” he said.

“This article in the Daily Telegraph, together with the opinion piece by AvMA’s Peter Walsh published today clearly sets out the concerns of the unintended consequences of the anticipated reforms.

“What is required here is a working party involving patient representatives at the very centre of any reforms to ensure that harmful unintended consequences are avoided.”

Further information

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