Government plans to rewrite costs in clinical negligence claims will deny some people justice
The Department of Health and Social Care (DHSC) - the government department overseeing our healthcare -- published its response recently to the consultation on Fixed Recoverable Costs in lower value clinical negligence claims, which opened in April 2022. A separate consultation remains open until 23 October 2023, which focuses on costs ancillary to the claim known as disbursements.
The new regime will apply to cases that settle for damages amounting to £25,000 or less. This will have a considerable impact on the way in which medical negligence claims are investigated, if they are pursued at all.
The reforms will bring into scope those cases where a person has suffered serious and avoidable injury, but, for example, is elderly, in low paid employment, receiving welfare benefits or was already disabled at the time of their injury. This is because claims for special damages are frequently much lower in monetary value for these individuals, bringing the total damages within the £25,000 limit.
The cost of investigating what has gone wrong and establishing breach of duty and causation at the outset of a case is significant, whether the damages eventually awarded are £25,000 or a six-figure sum.
Making these cases too expensive to pursue will remove access to quality legal advice and prevent access to justice for vulnerable and disadvantaged people.
Further, an investigation into why things went wrong is key to effecting change in the NHS and forms part of the learning and development of healthcare practitioners. A failure to properly investigate injuries sustained as a result of negligence would prevent this learning, and there is scepticism that it would foster a 'deny and defend' culture in healthcare settings as claimants would be priced-out of pursuing lower value defended claims.
Thankfully, cases involving stillbirth and neonatal deaths have been excluded from the regime. It remains however that other fatal cases will remain subject to the regime, producing the absurd and unfair result that bereaved people are granted access to justice only if their loved one died through negligence under a very specific set of circumstances.
The Government argues that too much is spent on lower value clinical negligence claims and that the associated legal costs are disproportionate to the damages awarded, which diverts resources away from patient care. However, similar cost saving reforms in the personal injury sector have not had the promised effect. Further to the whiplash reforms implemented in 2021, the price of car insurance premiums has in fact escalated when the public were assured that implementation of the reforms would lead to a reduction in premiums.
The rollout of the FRC regime is due in April 2024. It is hoped that the DHSC will revise the proposals in the interim in order to reduce the negative impact this will undoubtedly have on access to justice and patient safety.