A new relationship 'for medics and lawyers

Those of us who care passionately about clinical negligence?face a dilemma. We know the current system is heavily flawed, but the proposed change to a fixed fees regime carries with it a number of risks that could further undermine the rights of those injured by poor care and treatment.

However, to paraphrase Charles Darwin, managing change is key to survival, ?and we must seek to use ?the upcoming consultation ?period to do just that, using ?our influence and experience ?to manage this process of evolution.

To that end, how should ?we attempt to shape the new system? What is the manifesto for fair fixed fees?

Carrot and stick

First, incentivise the good and punish the bad. Co-operation and reasonableness are crucial to minimising cost and the new rules need to be designed to embed these behaviours into the process.

Therefore, when claims are settled at the earliest possible opportunity, when full disclosure is provided in a timely manner, when claims are withdrawn when the balance of evidence tips in the defendant’s favour, co-operation in these instances needs to be recognised and rewarded.

How this is applied needs ?to send out a clear message ?that codes of behaviour ?apply equally to both sides. Fixed fees will not work if the medical profession sees the ?new regime as a shield to hide behind – a licence for poor standards to go unpunished.

Efficient behaviours

Second, the system needs to be focused on greater efficiency, not just lowering the NHS’s legal bill. This is a subtle but crucial difference. It acknowledges that the cheapest behaviour is not always the most effective. 

This will help ensure the system is impartial – anchored in good practice not political need – and accepted.

An example of this principle in practice would be to allow low-value claims to be excluded from fixed fees based on their complexity. Creating a structure that is too rigid to accept anomalies is not efficient and would indicate an attitude of lower fees no matter what the cost. The point should be made here that naturally lower costs will flow from greater efficiency in any event.

Innovative approaches

Third, test innovative approaches to claims management. With such a radical change, new practices will need to be adopted in ?order to achieve the desired outcomes. 

One clear area for trial is the use of a single, independent expert witness. The cost of experts is evenly distributed between claimants and defendants, with each witness typically increasing costs by £6,000 to £12,000.

The use of a single witness, initially on lower value, non-complex cases – below £24,000, for example – for condition and prognosis reports would make a substantial saving and reduce the knock-on costs of any resulting legal wrangling over differences of opinion.

Refereeing decisions

Finally, establish independent oversight. As with any legal dispute there is ultimately the need for a referee to blow the whistle and have the final say. ?At present the courts play this role in clinical negligence, but the new regime will require ?new ways to resolve issues ?and enforce the spirit of fair ?play on both sides.

Part of this can be achieved with good planning, such as setting out a framework of incentives and penalties to guide behaviour. But systems for alternative dispute resolution should also ?be explored, helping nip disagreements in the bud without incurring the expense of court time.

When the dust has settled, the ultimate test for fixed ?fees will not simply be lower legal costs, but whether they establish a new tone for the relationship between the medical and legal professions. 

Rather than an adversarial approach, can the two sides work together to support injured patients and highlight areas of poor medical practice where future harm can be prevented? 

The next few months will determine whether that is indeed the outcome, or if established divisions become further entrenched.

Ed Fletcher is CEO of medical negligence and serious injury law firm Fletchers Solicitors @EdwardBFletcher www.fletcherssolicitors.co.uk