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‘Costs in clinical negligence cases should be proportionate’, says Ministry of Justice

‘Costs in clinical negligence cases should be proportionate’, says Ministry of Justice


A Ministry of Justice spokesperson said that ‘all personal injury victims should be fully compensated, but the costs involved should also be proportionate’.

They said: ‘To help ensure this happens, we have set out proposals for a fairer way of setting the personal injury discount rate, as well as asking the Civil Justice Council to look at measures to control costs in clinical negligence cases.’

Call for change

On 29 January, a coalition of organisations representing NHS England wrote a letter to Lord chancelor and secretary of state for justice David Gauke, urging him to curb the rising costs of clinical negligence claims.

The letter said: ‘The rising cost of clinical negligence is unsustainable and means that vast amounts of resource, which could be used more effectively, have to be diverted elsewhere.’

‘We fully accept that there must be reasonable compensation for patients harmed through clinical negligence, but this need to be balanced against society’s ability to pay.

‘This is money that could be spent on frontline care.’

There is currently no limit on legal costs for medical negligence cases that can be recouped. The Government estimates that a new cap would save the NHS up to £45m a year.

Increasing costs

Last year, the NHS spent £1.7bn on clinical negligence claims, which represents 1.5% of spending on front line health services.

This annual cost has almost doubled since 2010-11, with an average 11.5% increase every year.

In a report, Dr Paul Goldsmith, consultant neurologist and policy strategist estimated that NHS' liabilities for medico-legal claims now total £65bn, ‘draining the NHS of much-needed funds and putting patients at risk’.

In 2017, former Lord chancelor and secretary of state for justice Elizabeth Truss changed the discount rate for personal injury claims from plus 2.5% to minus 0.75%.

The letter said that ‘the financial impact on the NHS was greatly exacerbated by this change, which has pushed up compensation payments in personal injury cases where there is an element of future care costs and earnings’.

The Ministry of Justice has asked the Civil Justice Council to devise a bespoke process and set a Fixed Recoverable Cost (FRC) for clinical negligence cases up to £25,000 damages, which ‘will make costs more proportionate in around two-thirds of successful claims’, said the Ministry of Justice.


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