What will be the impact of the Government introducing fixed costs for medical claims worth up to £100,000?

The Conservative Government is proposing to impose a fixed costs regime for all medical claims worth up to £100,000. This has been announced without any proper consultation or analysis of the likely effects on injured patients.

Such a move will inevitably lead to a situation where Defendants are encouraged to deny allegations of negligence, leaving injured patients to carry out investigations that would not be paid for even if negligence was proven, and their claim succeeded.

Why do I say this?

If costs are fixed, defendants will be given a clear incentive to deny responsibility for most claims and thus force injured patients to run up high costs proving what happened in their case. The costs incurred could then not be recovered as they would be fixed. This would mean many worthy claims being abandoned as they would become uneconomic to pursue.

Needless to say, this would provide a totally unfair balance between the interests of injured patients and the defendants.

IF the Government is intent on proceeding with a fixed costs regime (and I would argue that the current system of CFA funding works well and does not need replacing anyway), it is essential that there should be safeguards for injured patients put in place. I suggest that if the regime is to be introduced, the following obligations should be imposed on defendants:

  1. To investigate claims and produce a detailed response within a specified period of time – say 4 months.
  2. To either make full admissions in the response or provide clear reasons for denial
  3. In the event of denial, the detailed response should include the reports on liability/causation upon which the denial is based.
  4. Trial of the scheme for claims worth up to say £5,000 before it is extended to higher value claims

Failure to provide proper safeguards will result in a grossly unfair situation for injured patients and will of course impact disproportionately on the poor, disabled and disadvantaged.

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