Reducing the cost of NHS medical negligence cases

Please can I urge everyone to read Catherine Dixon’s article in the Law Society Gazette published 21 August 2015.  Please read it all, right down to the bottom including the comments (well, most of them).

Catherine Dixon is Chief Executive of the Law Society. She used to be the CEO of the NHS Litigation Authority. So she should know her stuff.  She claims that in 2014 the NHSLA paid out £1,169,506,598 in compensation following successful clinical negligence claims.  That’s an astounding amount by anybody’s reckoning.  What’s more staggering is that the sum of past, ongoing and yet to be reported cases is just under £29 billion (although these figures are disputed by some commentators).

These figures normally provoke cries of “the compensation culture is bringing the NHS to its knees!” and “it if wasn’t for these opportunists there would be more money to pay nurses etc”. Indeed it was only last year that Ms Dixon, when still CEO of the NHSLA, made disparaging remarks about the level of costs claimed by claimant solicitors, see the wonderfully entitled article “Ambulance chasers push NHS costs bill to £200m”.

Ms Dixon is today wearing a different cap and is now asking why isn’t the NHS doing everything it can to prevent the damage in the first place?  She dismisses the chicken and the egg argument of “the NHS has no money to invest because of the compensation pay outs” and says that the amount of outlay it would take to invest in training and extra staff and resources is nothing compared to the compensation fund. And she should know.

Instead of this approach, the Department of Health has decided that the best way to reduce the burden is to introduce fixed costs in clinical negligence claims.  The delivery of the consultation is due in November although there has already been widespread speculation of what these fixed costs will comprise.  It is anticipated that costs will be capped as a percentage of the compensation received by the claimant rather than based on an approximation of the work to be undertaken.  Given that clinical negligence claims are usually complex (irrespective of the value of the claim), it is inevitable that claimants with lower value cases will find it impossible to engage a solicitor because even basic costs will not be covered by a capped recovery. Indeed, this is happening already. I am currently investigating a case for a gentleman who was turned away by one firm of solicitors because his claim was worth less than £100,000.  A life changing amount.

I welcome Ms Dixon’s analysis.  It is not a new perspective nor is it particularly insightful. However, she is someone who has lived both sides of argument and her views cannot be dismissed as without foundation.  Although her opinion may change depending upon what cap she is wearing I doff mine to her for bringing a breath of fresh air into this debate.

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