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29.06.15

Medical negligence legal fees to be capped

The Department of Health plans to impose a cap on the fees lawyers can claim in medical negligence cases against the NHS in England.

The plan is intended to save the NHS up to £80m by fixing the fee a lawyer can charge for claims of up to £100,000 at a percentage of the compensation received by the patient.

Health minister Ben Gummer is pushing through the changes in an effort to reduce the £259m bill for legal fees paid out over clinical negligence claims in 2013-14.

The NHS did recoup £74m by challenging some claims made but the DH says taking these cases to court is costly and time-consuming and believes further savings could be made.

There is currently no limit on legal fees even if the compensation claim is small, allowing lawyers to claim extortionate fees even on low-cost cases.

DH officials provided several examples in which they believe the current system was abused.

In one instance a lawyer pocketed £175,000 while the patient received just £11,800 in damages.

In another, the legal bill was more than £80,000 while the patient only received £1,000, although the legal bill was later reduced to less than £5,000 by the courts after a successful challenge by the NHS Litigation Authority (NHS LA).

Gummer, said: "Safe, compassionate care is my upmost priority and to achieve this, the NHS must make sure every penny counts.

"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."

A leading clinical negligence solicitor, Terry Donovan from the law firm Kingsley Napley, told the BBC that costs are sometimes driven up by delays in the NHS admitting liability.

He added: "This sounds like another massive attack on access to justice for everybody.

"Fees are already tightly controlled, with the courts managing costs carefully as a result of recent reforms. Costs are already capped and limited.

"These so-called low value cases under £100,000 still involve cases where people have had serious injuries and lives have been destroyed.

"Costs can be very proportionate if the NHS will admit liability promptly when it's appropriate.

"But defendants drive up costs if they don't admit liability early on and the case ends up in court."

However the Medical Protection Society, which provides doctors and healthcare professionals with indemnity and guidance on medico legal issues, supported the move.

Emma Hallinan, the organisation’s director of claims and litigation, said: “It’s great that government is tackling this important issue; a new approach is desperately needed. We have been calling for a fixed cost regime to help address the rising cost of clinical negligence, and it is fantastic to see that government plans to cap excessive legal fees that are placing such a burden on the public purse.

“It is not unusual for us to see legal costs far exceed what the patient receives in compensation in small value claims – this is simply not right. Introducing fixed costs for small value claims will ensure that legal costs do not dwarf compensation payments, and the money can be spent on patient care instead.”

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