Changes to lawyers’ fees in personal injury cases are set to save the NHS millions
BMJ 2011; 342 doi: https://doi.org/10.1136/bmj.d2112 (Published 01 April 2011) Cite this as: BMJ 2011;342:d2112
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I thank Mr Levy for clarifying issues further. He now refers to "abolition of recoverable success fees" rather than the reduced success fee(capped at 25%) as reported by Dyer [1] initially,so wonder whether success fee had been abolished altogether since Mr Levy's first response?
It is also not clear as to why the burden of "rigorous risk assessment" or merits assessment of a claim would shift to defending healthcare providers as the initial onus is upon the claimant(or their lawyers) to carry out such assessments before issuing proceedings. In any event, it would not be right for any defendant to entirely rely upon risk assessments of a claimant's lawyers, whether or not,they fall into the specialist category.So I remain uncovinced that healthcare providers will have to bear additional costs as result of changes to sucess fees. Similarly, the argument that costs will "escalate enormously" due to an increase in litigants in person etc is not supported by independent,objective evidence or research. Finally, as I said before, lawyers would still be entitled to claim their usual costs from losing defendants irrespective of the changes to success fees.
References
[1]News:Changes to lawyers' fees in personal injury cases are set to save the NHS millions.Clare Dyer.BMJ 2011 342:d2112; doi:10.1136/bmj.d2112
Competing interests: No competing interests
Dr Ilangaratne has asked why the proposed changes would lead to
additional costs. At present, specialist lawyers carry out rigorous risk
assessment of complicated potential claims. These investigations can take
up to 2 or 3 years before the solicitor advises the patient that the
prospects of success are not sufficient to justify issuing legal
proceedings. The abolition of recoverable success fees will mean that
Claimant solicitors will no longer be able to perform this (unpaid)
function which will fall on healthcare providers and their lawyers. The
costs will simply be shifted.
In addition, defence legal costs will escalate enormously as a result
of the cumulative effect of driving specialist solicitors out of the
market and a great increase in the numbers of litigants in person or who
are supported by unqualified claims "farmers".
Taking success fees out of damages will result in great injustice,
especially for the most severely injured patients, where the vast bulk of
the damages awarded is designed to cover the cost of future care,
accommodation, treatment, equipment and therapies.
Yours sincerely,
RUSSELL LEVY
Head of Clinical Negligence
Leigh Day & Co. London EC1M 4LB
Competing interests: As a lawyer I have an interest in lawyers' fees.
The figures I quoted came from the Justice Secretary, Kenneth Clarke,
who gave them during a radio interview. They were widely quoted but it
turned out that he got the figures mixed up. In fact, ?456 million is
the cost for damages (?312m) plus defence legal costs (?40m) plus claimant
legal costs (?104m).
Competing interests: No competing interests
If Clare Dyer's figures are "fishy" as suggested by Mr Levy [1],then as a responsible publisher, the BMJ should provide a clarification rather than leaving its readers to decide the accuracy and source of the said figures. More so, given the figures from the NHSLA [1], do not seem to be compatible at all with what Dyer had quoted [2].
Whilst Mr Levy is entitled to take the speculative view that proposed changes are bad for patients and their safety, it is not clear as to how such changes would lead to "additional costs" which would wipe out any savings [1];perhaps,Mr Levy would be good enough to clarify. Though in "most cases [2] a successful defendant will not be able to recover their usual costs, this would surely be an incentive to many claimants who were previously deterred by potential costs of a successful defendant; hence, this is not necessarily a bad thing.After all,the lawyers would still be entitled to claim a reduced 'success fee'(capped at 25%) from their winning clients and arguably,it is a fair & proportionate amount, in addition to their usual costs still coming from the losing defendant.
References
[1]http://www.bmj.com/content/342/bmj.d2112.extract/reply#bmj_el_256751
[2]News:Changes to lawyers' fees in personal injury cases are set to save the NHS millions.Clare Dyer.BMJ 2011 342:d2112; doi:10.1136/bmj.d2112
Competing interests:
None declared
Competing interests: No competing interests
One does not need to be Ben Goldacre to realise that there is
something fishy about the figures quoted by Clare Dyer for NHS payments of
damages and legal costs in clinical negligence cases, ('Changes to
lawyers' fees in personal injury cases are set to save NHS millions' BMJ
2001; 342 d 2112) which were those used by the Justice Secretary, Kenneth
Clarke, when he told listeners of the BBC Radio 4 'Today' programme on 29
March 2011:
"I mean in 2008-09 the NHS did pay out ?312m in damages; it paid far
more out to lawyers in fees, ?456m. So it is the wrong way round and it
is not where the NHS should be spending money."
In fact, the figures published by the National Health Service
Litigation Authority (Factsheet 2: Financial Information - available on
their website at www.nhsla.com) show total payments for clinical
negligence claims in 2008/09 of ?769million. The figures for legal costs
are not quoted separately for that year but in evidence to Lord Justice
Jackson, the NHSLA stated that legal costs paid to both Claimants and
Defendants' lawyers totalled ?143million for 2008/09. These figures are
similar to those published in Factsheet 2 for 09/10 of payments totalling
?787million with legal costs of just under ?164million.
The truth is that the proposed changes are bad for patients and bad
for patient safety. The total amount saved is unlikely to exceed
?25million - ?30million but these savings are likely to be more than wiped
out by the additional costs incurred as a result of the removal of
recoverability of costs when a Defence succeeds and the inevitable vastly
increased number of claims brought by patients using non-specialist legal
advisers or acting on their own behalves.
The pity is that the reforms make no attempt to grapple with the real
issue; that by forcing the patient to initiate, investigate and prove the
claim, the current adversarial system is ridiculously expensive and
unfair. It carries with it a perverse incentive for Defendants to claims
to be unhelpful and unforthcoming or even to dissemble. Those incentives
are enhanced by proposed reforms to "proportionality" which will restrict
the fees recoverable on behalf of a patient by comparing them to the
compensation recovered. Because another quirk of our law is that fatal
cases usually only lead to modest payments of damages, the most serious
cases are less likely to be thoroughly investigated. Also, the proposed
change to shift the burden of part of the legal costs from the Defendant
to the Claimant will hit the most seriously injured hardest.
All experienced litigators know that it is behaviour that drives
costs. Rather than warmly welcoming these proposals, the MDU should be
carrying out an internal investigation into why it did not settle a claim
where the patient's damages were agreed at ?8,000 long before the
Claimant's legal costs had reached ?62,000. Defendants can avoid the bulk
of their costs bill if they are prepared early on to acknowledge that the
issues can be narrowed and to settle cases that they are likely to lose,
rather than hanging on in the hope that they will extract some litigation
advantage by wearing the Claimant down to the extent that he or she
withdraws the claim or accepts an under-settlement.
What everyone interested in patient safety and justice should be
doing is getting together to devise a completely new model that combines a
full, open and independent investigation of an adverse outcome conducted
in as blame-free an atmosphere as possible with proper compensation paid
to patients who suffer avoidable medical accidents and steps taken to
avoid repeating mistakes. Sadly, instead, all that the Government, the
NHS and the medical defence organisations are interested in is seeking to
cut spending by preventing patients from bringing claims in the first
place and hindering a full investigation of those claims that are brought.
Yours sincerely,
Russell Levy, Head of Clinical Negligence
Leigh Day & Co. Priory House, 25 St John's Lane, London EC1M 4LB
Competing interests: As a lawyer I have an interest in lawyer's fees.
Re:Changes to lawyers' fees in personal injury cases are set to save the NHS millions
Russell Levy rightly raises his concerns about a system trying to
save money yet apparently wasting vast sums by inefficiencies. The whole
area of "incidents and accidents" is being brought into focus by
confirmation that the new, well current version, of the Health and Social
Care Bill will include a Statutory Duty of Candour.
"We must be open" everyone shouts. But about what? "That's easy, we
need to be open about what went wrong". But do you know what wrong?
"Yes, the clinician screwed up." But why did the clinician screw up?
"Because they weren't any good at their job!"
Every year the NHS investigates hundreds, maybe thousands of
incidents. There is no requirement for those investigating to be trained
to do this. It's called "Root Cause Analysis", the title implies that
there is always one root cause, and guess what, there always is. You can
find a root cause in any incident. For example, "the clinician didn't
follow protocol". Fire the clinician and everyone is now safe. But is
that true? The reality is that a skilled investigator won't look for root
cause, but look for all the contributory factors. For example, did other
people routinely not follow protocol, why did people make that choice, why
was it better not to follow protocol? Did the team have opportunities to
prevent problems occurring, did management properly manage the procedure,
did they encourage corner cutting to get the job done (by example
perhaps)? All these questions would need answering if we are to really
learn from avoidable death and maiming.
When my late wife died during a routine operation (see www.chfg.org )
I didn't want people to say "sorry". I didn't want to blame anyone; but
like hundreds of others in my own position I wanted someone to say "We
don't know what happened, but we are going to investigate and make sure
the lessons are shared to make sure this doesn't happen to anyone else".
Instead of the myriad of ineffective RCA's that take place, may I suggest
we start by independent, expert investigation of all factors, especially
the human factors and systemic issues involved in avoidable death in the
NHS. Fewer but better quality investigation will be more efficient and
give us better qualitative data.
A former member of the Council of the Royal College of Surgeons of
England and adviser to the Parliamentary Inquiry on Patient Safety in 2009
said once "Full and proper investigation, as happens in aviation, is a win
-win-win. It's a win for the relative, who can understand what happened
and see that lessons are being learnt. It's a win for management, who can
learn what happened and change the system. And it's a win for the team
involved, because they can start to come to terms with what they were
involved in, and take those lessons forward in their heart."
Competing interests: Current Chair of the Clinical Human Factors Group.