ARAG joins SCIL calls for fixed recoverable costs rethink

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ARAG after-the-event account manager Lisa Abrahams was in Westminster recently, to attend an important Society of Clinical Injury Lawyers (SCIL) event in Parliament on reforms to clinical negligence.

SCIL hosted a discussion with MPs to highlight the potentially detrimental impact that Department of Health proposals to introduce a fixed recoverable costs regime would have on clinical negligence cases.

The Civil Justice Council working party formed to develop proposals for a fixed recoverable costs regime for low-value clinical negligence claims up to £25,000 is expected to report its recommendations in February or March of next year.

While fixed costs have been imposed on other case types in recent years, clinical negligence has so far been left outside of the existing fixed recoverable costs regime.

“It’s hard to overstate quite how unsuited fixed recoverable costs would be to clinical negligence cases,” commented Abrahams, representing legal insurance provider ARAG. “Such litigation is inevitably lengthy, complex and very diverse. It calls for specialist solicitors with very specific experience and can take years to resolve.”

“These cases involve some of the most vulnerable people in our society who may have been left bereaved or with life changing injuries. Introducing fixed recoverable costs would deny them access to justice, in many cases, but also have far wider negative consequences.”

“It’s not just the immediate impact on those who have been injured as a result of medical malpractice. There is a broader and potentially much more serious issue about how the NHS can learn from its mistakes if it cannot be held accountable for them.”

The cost of clinical negligence claims has long been considered unaffordable for a struggling NHS. During the 2017/18 reporting period, NHS Resolution spent more than £2 billion on damages and claimant and defence costs.

Abrahams said: “We all appreciate that some reform of the current costs regime may be necessary and SCIL continues to work with the Civil Justice Council to develop a process for clinical negligence claims below £25,000.”

“However, the only reasonable way to make a significant impact on the huge cost of clinical negligence will be to reduce the number of claims that need to be made, especially in the fields of obstetrics and gynaecology. Quite aside from reducing the number of people who have to go through such heart-breaking ordeals, which should be reason enough, reducing the number of incidents would reduce costs and settlements.”

SCIL is urging members and anyone else who is concerned by the issue to write to their own MPs to express opposition to the reform.

“Simply capping the costs of one side is wrong and will not improve the process or patient safety.” said Steve Webber, chairman of SCIL. “It risks driving out specialist lawyers who will be replaced by unqualified claims farmers who will flood the NHS with poorly assessed cases so increasing costs. It will also deny innocent victims access to justice and the best outcomes for their cases.”

“We are proposing reforms which will speed-up the process, change defendant and claimant behaviour without risking the unnecessary downsides which are predictable and damaging. We will also place patient safety at the heart of the new system. We will launch the SCIL scheme shortly and seek everyone’s involvement in the debate to make real change work.”

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Mark Dugdale is the editor of Claims Media. Mark welcomes articles, letters or feedback from readers and can be reached via mark.dugdale@barkerbrooks.co.uk