When Lord Justice Jackson recently commented that due to the complexities of clinical cases he cannot see the possibility of extending fixed costs beyond £25,000 (albeit there may be scope for some use of his proposed midtrack for admitted cases beyond that value) most patient lawyers agreed he is on the right track. Some reform is necessary and if that can be achieved with a strengthening of the duty of candour (generally if possible, but certainly for cases up to £25,000) then reform may be workable.
However, the political response of the Medical Protection Society (MPS) is to balance the progress with their latest ‘messages’ in the press.
MPS have taken the opportunity (no doubt linked to the timing of the British Medical Association conference) to stir the pot and risk undermining the progress that has been the aim of the likes of APIL for many years.
MPS’ message seems to be blame the patient rather than the negligent wrongdoer. They quote that a typical practitioner may now face an average of two claims in their career rather than previously one, and that costs of claims may increase from £1.5bn in 2015/16 to £2.6bn in 2022. The question should be: why are these costs increasing rather than verbally attacking the patients who have been injured. MPS’ suggestions simply do not correlate with the published figures from NHS Resolution that the number of claims fell by 2.4 per cent last year, from 10,922 in 2015/16 to 10,661 in 2016/17. Since the introduction of LASPO, these clinical claims have been falling year on year, with an 11 per cent drop since 2013/14. Therefore the only reason that costs can be forecast to go up by such an amount is that the MPS are predicting that their members are going to be more negligent!
Any predicted increase in negligence, is of course extremely disturbing for patient groups such as APIL, yet MPS propose wholescale change to the law of negligence and the requirement of 100 per cent damages, by changing the established methodology of calculating care claims; adopting national average weekly earnings for loss of earnings rather than compensating the actual loss; reforming the Limitation Act 1980 to put a 10 year longstop on claims; introducing a fixed costs scheme to £250,000; restricting access to experts, reducing the cost of reports and restricting after the event insurance; and as a throw away increasing the small claims threshold to £5,000.
Changes of this nature would not assist anyone, save for permitting the negligent wrongdoer to continue committing negligence, but at a lower cost to them. All patient lawyers are for improvements that reduce the number of adverse incidents. Costs can be reduced by a greater level of proactive engagement which is starting to occur with NHS Resolution. The same cannot always be said of MPS who at times tend to defend the indefensible.
Patient safety has got to be the key message in all treatment.