​Dental Protection has welcomed a Department of Health and Social Care consultation on proposals to limit the legal costs that can be recovered by claimant lawyers for lower value clinical negligence claims, but believes more could be done to ensure such a scheme benefits dentistry.

The proposals aim to tackle the “increasing and disproportionate legal fees” through the introduction of fixed recoverable costs and a new streamlined process for claims up to the value of £25,000 in England and Wales. The cost of clinical negligence claims to the NHS rose to £2.2bn in 2020/21 with legal costs accounting for 27 per cent of that bill.

Whilst Dental Protection has welcomed the consultation in principle, the leading indemnifier has said it will call on the government to ensure the proposals have a meaningful and positive impact for dentistry– including considering whether cases up to the value of £250,000 could be included in a fixed recoverable costs scheme.

Steven Davies, head of legal services at Dental Protection, said, “It is not unusual for the costs awarded to claimant lawyers to be significantly higher than the damages paid to the patient – sometimes it could be two or three times higher. This happens even where claims are settled at an early stage.

“For example, in one case of an alleged failure to diagnose a palatal cyst (UL3 area), damages were agreed in the sum of £15,000. The original bill of costs submitted was for £93,043.65. Costs were substantially reduced by negotiation to £30,000 however, this figure was twice the amount of damages paid.

“This cannot be right, and we have long called for the introduction of a fixed recoverable costs scheme to stop lawyers charging disproportionate legal fees.

“Significant attention has been paid to the impact of clinical negligence costs on the wider NHS, but it is important that any scheme also benefits dentistry where this is also a significant issue. We will be studying the proposals closely to assess the likely impact they would have on claims against dentists and we will respond on behalf of the profession.

“As part of this, we will make the case that a fixed recoverable costs scheme should be applied in claims up to the value of £250,000, providing a more cost-effective scheme fit for the future of the profession.”

Meanwhile, John Makin, head of Dental Defence Union (DDU), also responded, saying, “This consultation has been a long time coming and is a welcome first step. However, for a fixed recoverable cost scheme to have a meaningful impact on claims, the DDU strongly believes that the scope of such a scheme should be far wider – applying to claims up to £250,000.

“Notwithstanding this, the proposal for a scheme for claims up to £25,000 is welcome. To put this in context, a significant proportion of the cases we settled for below £25,000 in 2020 saw legal costs paid to claimants’ lawyers exceed the damages payment paid to claimants by over 500 per cent.

“The government has promised a more ambitious consultation this year on wider reforms. It is vital this happens. A House of Commons select committee inquiry is also underway. The DDU’s parent company, the MDU has submitted robust evidence which we want to see acted upon without further delay.”

You can find out more about the reforms called for in the DDU’s fair compensation campaign.

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