Concerns over the effect of capped legal fees on maternity care

Fears have been voiced in many quarters that NHS failings in maternity care will be brushed under the carpet following the announcement of new government plans to limit legal fees where claims for damages are worth less than £25,000. This would include the deaths of new-borns and stillbirths.

 

The review of civil litigation costs

The changes proposed by the government are based on the review of civil litigation costs carried out by the Right Honourable Lord Justice Jackson. In his report, he recommended capping the costs recoverable by people successfully suing negligent NHS trusts.

The long-awaited document issued on 31st July recommends establishing a working party to examine fixing costs for clinical negligence claims. He said that the Department of Health and the Civil Justice Council should establish the group and involve both claimant and defendant representatives to develop a bespoke process for handling claims up to £25,000.

 

Implications for maternity care

Action against Medical Accidents, a charity working for patient safety and justice, has condemned the move, saying that the new rules would mean that those bereaved due to mistakes in care would be unable to find a lawyer willing to take their case, because the fees would not cover the costs of investigating the failings.

Britain is currently ranked 33rd out of 35 countries in the developed world for its stillbirth rates. Patient groups have long expressed concerns that the NHS is failing to make vital improvements in maternity services. A report conducted at the beginning of the year by the National Childbirth Trust found that a chronic shortage of midwives across the UK left many women feeling unsafe and frightened during childbirth, and reported a marked increase in ‘red flag’ events. A red flag problem is defined as a “warning sign that something may be wrong with midwifery staffing”.

We are members of the Society of Clinical Injury Lawyers (SCIL) which promotes best practice in the conduct of clinical negligence claims, and campaigns for access to justice. SCIL’s chairman, Steve Webber, believes that the NHS defends too many cases for far too long when they should admit early liability, commenting: “The NHS is not learning from its mistakes. We see this with the same claims coming from the same hospitals again and again. These claims are then denied and dragged out unnecessarily for far too long”.

 

Reaction from patient groups

Action against Medical Accidents said that the Jackson report did not recognise the complexity of many cases of less than £25,000. They maintain that clinical negligence claims are far more complex than personal injury claims, and imposing fixed costs – no matter how long and inappropriately the claim has been defended – means that many of the claims will not be feasible.
Our view is that these proposals run the risk of denying many claimants access to the justice they deserve.