End of the claim game?

On 1 April this year, major changes were made to the civil justice procedures. These aimed to reduce patient’s legal costs that are recovered from defendant dental professionals in compensation claims.

If you have been unlucky enough to be on the receiving end of a negligence claim, you’ll know how important it is to have an experienced team defending your actions. But you may not have realised that, in the event of the claim being settled or lost at trial, i.e. where compensation is paid to the patient on your behalf, your dental defence organisation will often have to pay the legal costs of the patient (or claimant, to use the legal term).

Fair enough, you may think, but in the past, in cases brought under ‘no win no fee’ terms (more accurately known as a conditional fee arrangement) claimants’ legal costs were often far in excess of the defendant dental professional’s legal costs, and out of proportion to the compensation received by the patient. Indeed, they could even exceed by several fold the compensation paid to the damaged patient. For example, in one case where a patient claimed compensation for a damaged back tooth, the claim was settled by the DDU for £1,500 but the patient’s solicitor claimed costs of £29,000.

No win

The good news is that changes, known as the Jackson reforms, have come into effect from 1 April this year. The reforms, which aim to introduce more proportionality to the system, include that, in cases where the patient receives some compensation, the defendant dental professional or their defence organisation will no longer be required to pay the claimant’s solicitor a success fee, which in the past could increase costs by up to 100%. Under the new rules, lawyers will, in future, need to recover any success fee from damages received by the claimant. There is also a cap on the success fee payable by claimants and the measures mean they will have a vested interest in their own case. To cover this, a 10% increase in general damages has been introduced.

Your move:

•    If you are on the receiving end of a solicitor’s letter, act quickly and inform your dental        defence organisation
•    Do not reply to the patient’s solicitors, beyond acknowledging receipt
•    Gather together all correspondence, relevant documents and the originals of the patient’s      records and radiographs
•    Contact your dental defence organisation (DDO)
•    Send your DDO everything they ask for without delay and deal with any other requests      from them promptly
•    Be aware of your DDO’s guidance on the topic.

Indemnity costs

Only time will tell whether the reforms have gone far enough to achieve the aim of reducing overall costs. Clearly it is important that patients have access to justice if they believe they are negligently harmed, but it is important that system is affordable. In the short term, the changes have had the opposite effect and we have seen a surge in claims, ahead of the 1 April deadline, with a 32% increase in claims notified in 2012 compared to 2011. It will take a while for these claims, and others already reported under the old procedure rules, to work their way through the system. So we will only know the true impact of the changes on legal costs in future years.

For more information The DDU has a guide to negligence and claims and its website includes a clinical negligence podcast with more information. Visit www.theddu.com.

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