This year the government will decide on the level of fixed fees to adopt for the proposed new standard and light tracks for lower value clinical negligence claims (value up to £25,000—complex or sensitive cases will be excluded). The report of the Civil Justice Council’s working group sets out fixed fees proposed by Claimant and Defendant representatives as no consensus was reached.  However, there was common ground on the shape of the scheme.  Parties and their legal representatives will need to be ready for changes to the claims process as proposals include Claimants making settlement offers with the Letter of Claim which should be supported by limited witness and expert evidence and details of losses.  Although the timescale for the Letter of Response is 6 months, Defendants will need to either admit or deny liability and accept the Claimant’s offer or make a counter-offer. Any denial (on liability or quantum) must be reasoned.  Innovative features such as a mandatory stock-take if the matter cannot be settled with the LoR and mandatory neutral evaluation if the impasse still cannot be broken will bring the FRC scheme into line with the courts’ current focus on ADR.

The government may decide to hold a further consultation, not least to iron out some of the continuing disagreements, for example whether fatal claims should be excluded from the scheme. Although FRC will go some way to tackling the increasing costs of clinical negligence the discount rate of minus 0.25% represents a challenge as does the continuing need to improve patient safety—identified by the CJC as a wider theme to emerge from its work. All three have a vital role to play in tackling the cost of claims.

Medical Malpractice Forward View 2020

This article is part of Capsticks’ Medical Malpractice Forward View 2020. Read the other articles featured in this publication below:

• Spotlight on seven key decisions in 2020 affecting healthcare providers and insurers
• Paterson Inquiry report due in early 2020
• The new Clinical Trials Regulation – implementation date likely to be delayed
• Further developments in telemedicine, AI and robotics will bring opportunities, challenges and risk for businesses in the MedTech sector.
• Where next on the appropriate approach to future accommodation claims?
• Mediation and other forms of dispute resolution are set to continue rising in medical malpractice claims
• Challenges to dishonest claims against health providers will continue to rise.

Get in touch

To discuss how any of these issues may affect your organisation, please get in touch with Majid Hassan (Head of Medical Malpractice Insurance), Anna Walsh (Claims), or Philip Hatherall (Claims and Inquests).