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Dental Protection responds to government consultation on clinical negligence fee cap

Post date: 02/02/2022 | Time to read article: 3 mins

The information within this article was correct at the time of publishing. Last updated 02/02/2022

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% of that bill.

While 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.”




Notes to editors

For press queries contact: E: [email protected] T: +44 (0) 7525 680165.

Two examples of cases in which the legal costs of the clinical negligence claims have been higher than the damages paid:

Case study 1: The failure to diagnose a palatal cyst UL3 area resulted in a claim being brought. 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.

Case study 2: The failure to diagnose and treat periodontal disease which resulted in up to four years of intensive treatment. Damages were agreed in the sum of £6,000. The original Bill of Costs submitted was for £32,541. Costs were reduced to £22,500 which was still considerably higher than the damages paid. In addition the case also required the use of the MPS external panel solicitors to assist in defending the matter on behalf of our member. The additional legal fees were £3,035.60.

About Dental Protection

Dental Protection is a registered trademark and a trading name of The Medical Protection Society Limited (“MPS”). MPS is the world’s leading protection organisation for doctors, dentists and healthcare professionals. We protect and support the professional interests of more than 300,000 members around the world. Membership provides access to expert advice and support and can also provide, depending on the type of membership required, the right to request indemnity for any complaints or claims arising from professional practice.

Our in-house experts assist with the wide range of legal and ethical problems that arise from professional practice. This can include clinical negligence claims, complaints, medical and dental council inquiries, legal and ethical dilemmas, disciplinary procedures, inquests and fatal accident inquiries.

Our philosophy is to support safe practice in medicine and dentistry by helping to avert problems in the first place. We do this by promoting risk management through our workshops, E-learning, clinical risk assessments, publications, conferences, lectures and presentations.

MPS is not an insurance company. All the benefits of membership of MPS are discretionary as set out in the Memorandum and Articles of Association.

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