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Primary care - the legal costs.

View profile for Kim Daniells
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The Medical Protection Society has called for fixed costs to be introduced for small value legal claims against GPs. In support of their call the MPS cited a recent case where a delayed diagnosis of skin cancer saw a patient awarded damages of £30,000.00 but the GP in question was forced to pay £42,000.00 to cover the Claimant’s legal fees during the 5 month process

Commenting on the cause for system reform, the Medical Director of the MPS, Dr Rob Hendry, said "It is not unusual for us to see legal costs far exceed patient compensation in small value claims". This is simply not right. We want to see fixed costs for small value claims to ensure that legal costs do not dwarf compensation payments and the money is spent on patient care instead".

The article calling for reform was published in the online Pulse Magazine.

In a series of anonymous comments under the article, the legal profession is described as "parasitic" and "ambulance chasers". Other comments call for the removal of lawyers from the process and for cases to be reviewed by an independent body. Others argued for indemnity to be provided by the NHS rather than medical defence organisations.

The article is the latest in a series featuring within the Pulse publication warning of the threat of litigation. In March of 2015 a warning was issued that GPs were "likely" to face litigation from "ambulance chasers" due to electronic patient record access. It is perhaps entirely understandable that doctors, under considerable financial and political pressure, are concerned about the time and money they are having to spend dealing with complaints and litigation.

As the more measured responses to the debate suggest, there are a number of options for consideration. As lawyers working in the field of clinical negligence, we would welcome an open and informed debate about alternative ways to address the concerns that some patients have about treatment. I suspect that most of my clients would welcome this debate too. The vast majority of them are reluctant to embark upon litigation but they have genuine concerns about the treatment they have received and they would like answers and explanations. Few are motivated by desire for compensation but the current system does not really provide them with the information, explanations and reassurances they are seeking.

Sadly, in all too many cases, their reasonable and genuine complaints and concerns are simply met with defensive and negative responses. Patients who go to the lengths of pursuing their complaints via the Ombudsman may find that their concerns are supported by the Ombudsman but they still receive an unhelpful response from the GPs and their representatives.

In the vast majority of cases patients simply want errors acknowledged and some degree of reassurance that other patients will not suffer the same way. Sadly, the system we have does not provide those reassurances and safeguards and accordingly litigation remains the final, unwelcome option. Ultimately, the very nature of litigation is that it provides a confrontational, potentially hostile and time consuming, approach to resolving problems. It is this that ultimately leads to the costs consequences that the MPS are complaining about.

To anyone outside of the litigation process it is probably difficult to understand how a claim at a value of £30,000.00 can involve legal costs that are much higher. To anyone within the litigation process it is entirely understandable. The case must be investigated. The records must be reviewed. Independent evidence must be obtained. Allegations must be considered and examined.  Witness statements are taken. Evidence is gathered. An adversarial approach results in each of these steps being taken by both sides so the work, the time and the cost is duplicated.

Those who suspect that legal fees are unreasonably inflated must remember that costs ultimately are at the discretion of the court. Indeed the Courts manage costs from the outset, capping budgets and dictating the way that litigation operates. Where compensation is paid there is an option to the Defendants to challenge the costs that are claimed and to ask the Court to intervene. If costs have been awarded that are higher than damages then either the Defendant or the Court must have accepted that these costs were reasonably incurred as part of the litigation.

This is not to say that there may not be a better way to proceed. All parties involved in litigation are required to consider alternative forms of dispute resolution. In many cases these alternatives are attractive to our clients but it can be very difficult to persuade a Defendant to enter in to meaningful discussions unless Court action has commenced. Court fees for starting proceedings may be well in excess of £1000. Thus costs are already high before negotiations begin.

Ultimately, the way for GPs and the MPS to avoid the excessive costs of litigation is to respond in a meaningful and constructive way when concerns are raised. That is not to say that GPs need to capitulate and admit error or harm every time it is alleged. However, it is essential that they have in place a system for dealing with concerns in which the patients have confidence. These patients are then more likely to engage in open and honest dialogue and less likely to litigate.

Whilst it is true that the legal profession advertises for clinical negligence cases more now than it has done in the past, this is to some extent a reflection on the willingness of patients to bring claims where problems have arisen with treatment. Patients no longer automatically trust that doctor knows best. The wealth of information available on the internet and elsewhere has encouraged patients to become better informed and more aware of their choices. Doctors will not deal with these societal changes by ignoring them or by shutting down objections or indeed by making it financially impossible for aggrieved patients to take action. They will deal with them best by involving patients in decision making; communicating effectively and then acting promptly and reasonably when concerns are raised.