The introduction of fixed recoverable costs for low value clinical negligence claims has been at the forefront of discussions for some years now. It is calculated that 60% of clinical negligence claims fall into the under £25,000 bracket. The Civil Justice Council (CJC) report on fixed costs in low-value clinical negligence cases has now been published, proposing some innovative ideas.
The CJC working group consisted of representatives from all sides of the clinical negligence world, including the Medical Protection Society and NHS Resolution. Alongside costs, the group discussed changing the pre-issue process; proposals for neutral evaluation; experts and learning and patient safety. The CJC has successfully managed to narrow the gap between the parties on the issues of legal costs and processes, although no material progress has been made on expert fees or ATE premiums.
A summary of key points is detailed below:
Along with the need for fixed costs, the pre-issue process was discussed at length. The proposed scheme includes a light track and a standard track.
Light track (LT) – key proposals
- The LT will include cases where no expert evidence is required on breach and causation, such as a never event or an SUI with admissions
- The LT is designed for claims that incur fewer legal costs because liability is not in dispute
- It was agreed that there will be exclusion of categories of case which are likely to be complex or sensitive, such as genuine multiple defendants, stillbirth, neonatal deaths and protected parties
- A formal suspension to the limitation period is to be agreed on entry to the FRC scheme, unless the defendant raises limitation as an issue within 21 days of the letter of notification
Standard track (ST) – key proposals
- The ST process starts with the claimant’s letter of claim served with all of the following: collated and sorted medical records; expert reports on breach and causation (limited to two experts); witness statements (limited to two witnesses); any separate report on condition and prognosis; details of losses; and an offer
- The defendant is to acknowledge the letter of claim within 21 days. After that, the defendant must, within a maximum of 6 months, choose one from the following: admit liability, accept the offer, reject the offer, or serve letter of response denying breach of duty and or causation
- A mandatory telephone discussion to take place within four weeks of the letter of response, unless the claimant provides a reply
- If the parties cannot reach agreement, the case moves to mandatory neutral evaluation (MNE). The parties have two weeks to select a specialist barrister and the evaluator will prepare a report within six weeks
Under these proposals, the claimant retains responsibility for obtaining and sorting the medical records. Sequential exchange of experts’ breach of duty and causation reports and witness statements (ST) is a key part of the recommendations for the ST, which will deal with cases where liability is likely to be in dispute.
Cases which do not settle neutral evaluation
Mandatory neutral evaluation (MNE) is a new and innovative idea, put forward by the working group at a relatively late stage to address some difficult problems related to preparing for litigation. If implemented, MNE would be a mandatory step, but the outcome would not be binding on either party.
The evaluator would be chosen from an agreed panel of specialist clinical negligence barristers. The evaluator’s fees would be shared equally at the outset and met by the defendant if the claimant succeeds.
Fixed recoverable costs under the new proposed scheme
The parties came close to agreeing figures for FRC. In the absence of a concluded agreement, the proposals of the claimant and defendant groups for the level of FRC are summarised in Tables 4 and 5 below, all figures are exclusive of VAT and disbursements:
Table four - standard track
Table five - light track
The CJC suggest that the government would look to resolve the difference between the parties on the ST.
The working group was not able to make any material progress on the level of experts’ fees or on ATE premiums.
The CQC recognise that the use of expert evidence is vital in the majority of clinical negligence claims. However, they conclude that there may be situations where it would be appropriate to settle without a separate report on condition and prognosis.
Problems were highlighted with the concept of fixing experts’ fees. The use of single joint experts was not supported.
Learning and patient safety
Patient safety and learning from mistakes was thought to be a key part in reducing the incidence and cost of clinical negligence claims. The working group concluded that nothing in the recommended process or FRC would have an adverse effect on patient safety.
Should you wish to discuss any of the above, please do not hesitate to contact our specialist team who will be happy to assist.