The conversation surrounding clinical negligence costs has taken a significant turn as the Medical Defence Union (MDU) increases its lobbying efforts to push the government towards reform. The MDU has written to Health Secretary Wes Streeting, urging him to consult on proposals to reduce the costs associated with clinical negligence claims. However, while their focus remains squarely on claimant legal costs, it’s crucial to remember that the issue is far more complex, with multiple factors contributing to the rising expenses.

According to NHS Resolution’s latest annual report, claimant legal costs increased by 11% in 2023/24, reaching £545.3 million. These figures have become a focal point for the MDU, which argues that reducing claimant costs could free up much-needed resources for the NHS. They have cited examples where legal costs have significantly outweighed the compensation awarded to patients, a situation they argue is unsustainable.

The MDU's primary objective is to see the government implement fixed recoverable costs (FRC) for clinical negligence claims up to £25,000. This proposal, which had already gained traction under the previous Conservative administration, was interrupted by the recent election. The MDU is now pushing for its swift reintroduction, with ambitions to eventually extend the fixed recoverable costs scheme to claims valued up to £250,000. An intermediate track has also recently been introduced which covers claims between £25,000 to £100,000 where the incident arose after 1st October 2023 provided certain criteria apply.

While the MDU's position is understandable, given their role in defending healthcare professionals, it’s important not to overlook the full picture. The rising costs in clinical negligence cases are not solely due to increasing claimant legal fees. There are many factors that can lead to cases incurring substantial legal fees and it must be remembered that not all “legal costs” include legal fees. The costs also incorporate the costs of instructing experts, court fees and any other associated expenses.  Defendant strategies, such as prolonging the litigation process and contesting claims without solid grounds, also play a role in inflating costs. These actions often lead to increased legal expenses and delays in delivering justice to patients who have suffered due to clinical negligence. It should also be remembered that since the Legal Aid (Punishment of Offenders) Reform Act 2013 the circumstances in which a claimant can secure public funding to investigate a clinical negligence action are now extremely restricted.

The importance of a fair investigation and obtaining fair compensation

For many claimants, pursuing a clinical negligence claim is not just about financial compensation; it’s about holding those responsible accountable and ensuring that mistakes are acknowledged and rectified. Many of our clients tell us that “they just don’t want this to happen to anyone else”. It is therefore incredibly important that the Government considers the picture as a whole starting at the root cause of what leads a patient to become a clinical negligence claimant including the initial care provided, why it went wrong and what internal steps the Trust have taken to satisfy the patient that they have taken necessary steps to remedy  situation of substandard care when it occurs.

Once a claim has begun, legal costs are a necessary part of this process, enabling claimants to access justice, often against well-funded and resourceful defendants.

Lisa Swales , director and solicitor in our Clinical Negligence department, comments, “When a new client contacts us, often their sole aim is to find out why something went wrong and to make sure it doesn’t happen to anyone else. Sadly, the reality is that the legal system still means that investigations are far longer and more complex than they should be. The NHS must deliver the best possible service to patients, and when things do go wrong claims must be managed in a timely and cost effective way.”

As discussions around reform continue, it’s essential that any changes to the system consider the roles and responsibilities of all parties involved. A balanced approach that addresses the behaviour of defendants as well as the costs incurred by claimants is crucial for a fair and effective clinical negligence system. Reforms should aim to streamline the process, reduce unnecessary delays, and ensure that claimants receive the compensation they deserve without undue financial burden.

While the push for reducing clinical negligence costs is necessary, it must be approached with a full understanding of the factors at play and must take into account the experience and expenditure of both parties to be truly effective.

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