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Fast Medical Negligence Claims Process

Could a ‘Fast Track’ system jeopardise medical negligence claims?

Under new proposals outlined by the government in its consultation paper ‘Solving Disputes in the County Courts’, medical negligence claims may be ‘fast tracked’.

The consultation document, prepared by the Ministry of Justice, explains that the government is proposing “significant reforms” to the current system, including “a simplified claims procedure on a fixed costs basis, similar to that for road traffic accidents under £10,000, for more types of personal injury claim.”

What is fast tracking?

Currently, fast tracking is used for certain road accident claims and other personal injury cases that are valued financially as being worth between £5,000 and £15,000. Claims that qualify for the fast track are then subjected to a streamlined process and a fixed timeline leading up to a trial date.

The benefits of this process are that it enables claimants to obtain compensation much more quickly, and it has so far been widely judged as a success. However, some are concerned that while such as system might work for relatively simple road accident claims, it may not work so well for more complex medical negligence cases.

MDU voices its concerns

The Medical Defence Union (MDU) responded to the proposals in the government’s consultation with its own ‘consultation response’ document. In it the not for profit organisation, which supports the interests of medical staff accused of medical negligence, said it was: “uncertain whether [the proposed changes] would produce the benefits envisaged.”

It goes on to warn that a fast track scheme such as the one currently in operation for low value road traffic accidents (RTAs) may not translate smoothly to clinical negligence claims. The MDU says its concerns are “about applying a scheme similar to the RTA’s PI (personal injury) scheme to low value clinical negligence claims when there are a number of fundamental differences between RTA and clinical negligence cases.”

In the case of road traffic accidents it says that: “Breach of duty is usually straightforward to determine; but this is less commonly so in clinical negligence cases.” Furthermore the MDU says that: “determinations of causation in clinical negligence claims will often require expert evidence and can be complicated by a number of underlying and potentially contributory pathologies.”

The government is at the moment considering a raft of changes as it attempts to reform the compensation system, most notably in relation to Lord Justice Jackson’s Review of Civil Litigation Costs. Another major change that has been proposed suggests making claimants liable for their own legal costs rather than solicitors claiming their fees from the defendant, as is presently the case.

Some are concerned that in light of these other changes, fast tracking medical negligence claims will further restrict access to justice and compensation for those who have suffered due to negligent medical treatment.

The government’s consultation however suggests that extending the fast track scheme to cover low value medical negligence cases: “would simplify the claims process, reduce the time taken to agree damages and result in reduced costs for all parties.” It also says that: “We would work closely with the industry to ensure that the scheme is fit for purpose.” That is a point that could be debated by both sides for some time to come.

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