What is the future of Clinical Negligence?

Fixed fee fiasco – what is the future of clinical negligence?

When a claimant is successful in their clinical negligence claim, at present, the defendant will pay the legal costs

Victoria Zinzan of the claimant. Although costs must be reasonable and proportionate, and sometimes subject to a detailed assessment, there is no specific limit on what the legal costs could be.

Clinical negligence claims are undoubtedly complex, lengthy, and dissimilar to other areas of law. Expert evidence is highly relied upon and often evidence of numerous experts in different disciplines are required. Given the area’s complexity, thorough and detailed investigations are often required which can lead to resultant disproportionate costs. This of course is at no fault of the claimant. A significant change on how claims are calculated may lead to access to justice being limited for claimants which counteracts both the fundamental right in common law, an express part of human rights law and an essential part of the rule of law.

Personal Injury, perhaps the most parallel area of law to clinical negligence, is currently governed by fixed recoverable costs and the government in September 2021 confirmed its intention to extending fixed costs for claims up to £100,000.00. This is admittedly concerning due to the immediate impact this has on ensuring claimants have access to appropriate levels of professional support during what is an extremely vulnerable time for them. In light of the introduction of fixed recoverable costs in personal injury, and considering the NHS’s comments that claims were rocketing, the government has begun the process of trying to introduce mandatory fixed recoverable costs for all claims worth up to £25,000.00 in compensation. It is proposed that costs would be limited to £6,000.00 for new ‘standard-track’ claims plus 20 per cent of damages agreed, and £1,500.00 plus 10 per cent of damages for what will be known as ‘light-track’ claims. With the balance of costs and time spent in mind, the level of investigations undertaken by a solicitor would be abhorrently capped.

This proposed change would not only impact the quality of service given to the Claimant, but also would risk putting smaller niche clinical negligence firms out of business, potentially leading to a rise of claims brought by litigants in person, thus having a counterproductive result due to the court needing to spend more time in assisting a Claimant as opposed to the government's objective of streamlining the process.

The proposed scheme encourages template letters and model expert reports be used during the initial stages of the claim and a resolution staging would be introduced, requiring a meeting between parties and a neutral evaluation by a barrister. In theory, this seems an easy solution to a widely criticised area of law, however, this gives no consideration to complex claims, such as adult fatalities, which are often not so straight cut. Nevertheless, claims requiring more than two liability experts, multiple defendants or neonatal deaths are to be excluded.

So, what impact will this have on junior lawyers? As a junior lawyer myself, I was repeatedly advised to avoid clinical negligence as an area of law to qualify in due to its uncertain future and impending cost caps however I do not think junior lawyers should be afraid. Clinical Negligence is an ever-thriving area of law, with some firms making millions year on year; for example, one firm were paid over £29m in legal costs in one case alone. An obvious concern arises in junior lawyers working for smaller niche firms whose financial stability may be rocked by cost caps. The government's proposals will evidently have a direct impact on those wishing to enter the profession specialising in a niche medical law area due to it no longer being financially viable. Furthermore, a proposal which will restrict fee earner’s ability to work on low-value cases whilst compromising professional standards simply cannot be supported.

Overall, the government’s proposal is based on a flawed perception that clinical negligence claims can fit into one stringent regime when in reality it is a very complex and diverse area of law. Currently, there are options for costs to be subject to a detailed assessment and negotiations often go back and forth between claimant and defendant solicitors prior to agreeing an amount to be paid. It is a consensus of both claimant and defendant solicitors to try to settle cases as early as possible and to ensure any costs to be paid are appropriate and legitimate, however this must be done without avoidable and superfluous changes to an area of law which requires scrupulous work, time and effort.

Victoria Zinzan

Trainee solicitor at mfg Solicitors LLP