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The newspapers are reporting again that legal fees in clinical negligence claims are becoming unsustainable. We ask whether the litigation system has failed, certainly in respect of clinical negligence claims owing to the expense and slowness of the process.

Insurers have called for a clampdown on lawyers’ fees in clinical negligence claims as part of proposals to curb rising costs and damages, which they claim are at the risk of becoming unsustainable.

A report has predicted that health service spending on clinical negligence claims could reach £2.6 billion a year by 2022 if costs and damages are not controlled.

The Medical Protection Society published a list of proposals, including a limit on future care costs based on a tariff agreed by an expert group, the use of national average weekly income to calculate damages awarded for future loss of earnings, and fixed recoverable costs for claims up to £250,000.

The last point, said the society, would “stop lawyers charging disproportionate legal fees”. Its report claimed that legal costs accounted for 34% of the £1.5 billion paid out in clinical negligence claims over the past year.

One solution might be to mediate more clinical negligence claims. The NHSR recently created a panel of mediators to mediate such claims and to save costs, but nothing seems yet to have changed and we have not seen an increase in mediated claims. It would be better to take these claims out of the litigation system entirely and have a “no fault” approach to resolving them whereby they are mediated at the outset. It would even be cheaper to settle borderline claims where there are causation or breach of duty issues but where patients feel that they have not received the service they expect, rather than spending thousands defending them to the hilt. This would require a change of culture by the NHSR which would truly have to turn from being a litigation authority into a resolution body, as its new name suggests.