Disproportionate legal costs make case for reform, MDU annual report reveals

Legal costs in some lower value medical negligence claims exceed compensation paid to patients.

Leading not-for-profit indemnifier the Medical Defence Union (MDU) revealed today that legal costs in some lower value medical negligence claims can be double or even triple the amount of compensation paid to patients.

Figures in the MDU's newly published annual report for 2021 reveal that the average sum paid in claimants' legal costs on medical claims settled for up to £10,000 was in excess of £18,500. For claims settled between £10,000 and £25,000, the average was nearly £35,000.

The MDU called on the government to proceed quickly with the reforms needed to the clinical negligence system to make disproportionate legal costs a thing of the past.

Dr Matthew Lee, MDU chief executive, said:

"Disproportionate legal costs are one of several defects in the current litigation system and particularly affect lower value claims. It cannot be right for legal costs paid to claimants' lawyers to regularly exceed the damages paid to claimants by double or triple the amount.

"The NHS is also facing disproportionate costs which put a strain on public finances. The latest annual report from NHS Resolution revealed claimant legal costs increased in 2021/22 by 5.1% to £470.9 million. NHS legal costs for the same period were £156.6 million.

"The Government recently closed a consultation on introducing fixed, proportionate, legal costs for cases valued up to £25,000. While we believe that the scheme should apply to claims up to £250,000 to have a real impact, the government has promised a more ambitious consultation this year on wider reforms. This cannot come soon enough."

MDU chairman, Mr Paul Riordan-Eva explained:

"We often hear it said that legal costs could be avoided if offers of compensation were made early and fault admitted. At the MDU, we will never settle a claim involving a member for the sake of financial expediency. We successfully defend the majority of claims we receive and understand the need to protect members' reputations. During 2021, we closed 85% of medical claims without a payment of damages.

"But the fact remains that the current system is time-consuming and stressful for claimants and defendants alike and enormously costly to the NHS at a time when every penny counts.

"The government must not kick this can further down the road. Urgent legal reforms are needed to make the cost of clinical negligence proportionate and affordable, balancing the needs of society, the NHS and taxpayers."

Our Fair Compensation campaign has more details about the changes we want to see.

Further results highlighted in the MDU's annual report for 2021 include:

  • Of cases which went to trial we defended eight claims, with a 75% success rate.
  • In Medical Practitioner Tribunal service (MPTS) cases, between 2016 and 2020, MDU solicitors representing members achieved no finding of impairment in 42% of cases compared to the average of 21.5%.
  • 23,000 member calls to our medico-legal advice line were answered by the MDU's expert doctors and dentists, with 99% of calls answered within 20 seconds.

This page was correct at publication on 04/08/2022. Any guidance is intended as general guidance for members only. If you are a member and need specific advice relating to your own circumstances, please contact one of our advisers.