Defendant lawyers have hit back following claims that they are the only ones benefiting from current clinical negligence claims.
Following a damning report from the National Audit Office, it is understood that a new system for processing small to medium-sized claims is under development.
The report, published last week, found that claims are taking too long to settle and the value of outstanding claims is rising.
It showed that since 1995, and the introduction of the National Health Service Litigation Authority (NHSLA), the number of claims and success rates have increased. In 1999-2000, claims settled totalled £386m compared with the previous year’s figure of £107m and the 1997-1998 £50m total.
The report suggests that today people are more litigious and aware of their ability to claim. Moreover, the report illustrates that the legal cost of reaching settlements is often more than the damages awarded. For claims up to £55,000, settlements were exceeded by costs in 65 per cent of cases. That proportion went down to 44 per cent for cases where the settlement was between £10,000 and £55,000.
Chairman of the committee of public accounts David Davies MP also received an angry reaction to his comment that the present system only benefits lawyers.
Defendant lawyers hit back over suggestions that their fees are excessive.
Hourly rates for defendant lawyers are fixed by the NHSLA at £155. But claimant lawyers can charge more, depending on their location. London partners, for example, may charge up to £280, or less than this with an uplift of up to 100 per cent for a conditional fee.
One medical negligence source says: “Medical lawyers have their fees regulated by the courts. In comparison to the fees of commercial QCs and firms, our fees are small fry. [Tony] Blair can start his inquiries closer to home.”
Claimant lawyer and partner at Scrivenger Seabrook Vikki Seabrook says: “The Auditor’s report highlighted the need for claimants and defendants to look for a better way of resolving cases – particularly small-value claims. It’s important to ensure that those who are the subject of an adverse incident are compensated appropriately and quickly, and at a cost that is proportionate and reasonable.”
Seabrook is concerned that lawyers on both sides are taking an entrenched view on cases. “We need to look at taking a fresh approach,” she says.
But one source believes that the figures released in the report are totally arbitrary. “Often, cases that don’t need to be fought are fought – money is thrown at cases arbitrarily and settlement is extremely random. It very much depends on the personality of the lawyers involved.”
The report calls for clearer guidelines showing a choice between the legal route and an NHS compensation system. There is suggestion that an arbitration panel could be the model for a new package approach, but there is scepticism about the success of such a panel.
Deborah Blythe, partner at Evill and Coleman, says: “A panel would be involved in very complex issues about fault and medical practices and may not necessarily speed up the process. We don’t have carte blanche to charge what we like. Ultimately, the rate of pay is either fixed by the Legal Services Commission or alternatively is what the court feels is fair and reasonable.”
The report recommends that the Department of Health, the Lord Chancellor’s Department and the Legal Services Commission should investigate alternative ways of resolving small and medium-sized claims.
Seabrook says: “I’m aware of initiatives in this area that are currently under consideration.”