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Government urged to increase medical legal costs cap

The government should take further action to put a cap on legal costs incurred from clinical negligence cases to limit the amount of money lost by the NHS, the Medical Protection Society (MPS) has today stated.

A consultation into introducing fixed recoverable costs in lower value clinical negligence claims was opened in January this year and will close on 2 May and suggests a fixed cap on legal fees that can be charged for cases of clinical negligence up to the value of £25,000 in England and Wales, a measure that is expected to yield around £45m in savings to the NHS per year.

Though the MPS has stated that it agrees with the proposals, it also believes that the government needed to go one step further by including cases of up to £250,000 under the cap.

MPS, who represent around 300,000 healthcare professionals in the UK, have called on the government to make the “bold decision,” on the threshold to ensure that opportunities for large NHS savings and a fairer system were not missed.

The organisation’s call follows NHS England extending its GP winter indemnity scheme that worked to protect and help GPs pay for the rising cost of indemnity payments for clinical negligence claims that were made against doctors delivering out-of-hours care.

Emma Hallinan, director of claims at the MPS, said: “We fully support the introduction of mandatory fixed recoverable costs for claims of clinical negligence.

“In lower value claims it is not unusual to see lawyers' costs exceed the compensation awarded to claimants,” she stated. “As an example, in a recent case involving a delayed diagnosis which settled for £4,000, legal costs of £35,263 were sought. This is simply not right.”

However, Hallinan said the low threshold of £25,000 set out by the government should be extended to feel the full benefit of the costs cap.

“While we understand the argument for not capping legal costs for the most expensive and complex claims, we believe it is appropriate and viable to include claims up to £250,000,” she said.

“Disproportionate legal fees are still a significant issue for claims up to this value – setting the threshold at £25,000 would help, but the financial benefits to the NHS and the taxpayer would be greater if the threshold were set at a higher level.”

She also said that the NHS paid out £1.5bn in clinical negligence costs in 2015-16, with legal costs accounting for 34% of that bill, and that the government changing its policy on legal costs could save the NHS much needed funds.

“This scheme presents an opportunity to create a more proportionate, fairer system while generating savings to the NHS which can be used to deliver front line care. It is an opportunity that should not be wasted,” stated Hallinan.

“We urge the government to be bold when making its decision on the threshold. Difficult decisions about spending in the NHS are made every day, and how we approach the spending of NHS funds on lawyer fees must be one of them.”

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Malcolm Ridgway   24/04/2017 at 13:13

It is high time that indemnity was funded centrally so that the spirally costs can be recognised and controlled. There would need to be a robust process of remediation and referral to GMC,NMC etc for cases of proven negligence/poor practice.

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