Debunking the myths about the clinical negligence bill

The colossal liabilities the NHS faces for clinical negligence claims and the detrimental effect on the government’s balance sheet was recently highlighted by the public accounts committee.  

‘Clinical negligence claims represent NHS money that could be spent on patient care’

Over the past few years, there have been a number of initiatives aimed at reducing the claims bill but misconceptions abound about how this can be achieved. In this article I counter five common myths about reducing the claims bill.

1. Improving openness could reduce claims costs

The government’s response to the Francis report included proposals to reduce or remove indemnity cover for hospitals that have not been honest with patients about a patient safety incident. Jeremy Hunt said “this would give a strong financial incentive to hospitals to be open about patient safety incidents”.

This is odd because there is no data supporting the premise that there is a widespread problem of lack of openness. Regulatory bodies such as the General Medical Council give clear guidance to doctors about the need to be open.  

The practice of medicine is complex and can never be risk free. Preventable things can and do go wrong with sometimes severe consequences for patients and to the distress of the healthcare professionals involved.

Of course, we must do everything we can to avoid preventable injuries. Patients who suffer harm as a result of a medical error should be told and, if there has been negligence, properly compensated. Improved patient safety might reduce future claims but even if it were possible to prevent every single adverse incident in future, this would not tackle existing claims or those arising from incidents that have already happened but where the claim may not be reported for many years into the future.  

The NHS’s estimated liabilities for claims arising from incidents that have already happened stood at a staggering £22.7 billion in March 2013.

2. Reform of legal costs will have a big impact

On 1 April last year, major changes were made to the civil justice procedures. These changes aim to reduce some of the disproportionately high claimants’ legal costs which NHS and defendant medical professionals had to pay. 

There has also been talk in the past of piloting a scheme for NHS Litigation Authority “low value” claims whereby claimant’s solicitors’ fees would be fixed. There must be greater control of claimant’s costs, but these types of reforms do not address the principal cause of the high value claims for millions of pounds: long term future care and loss of earnings.

3. No-fault compensation is the answer

No-fault schemes have been considered intermittently over many years, most recently by the Scottish government, which is considering introducing a no-fault compensation scheme for injuries caused by clinical treatment.

Experience elsewhere shows no fault compensation increases the number of claims dramatically, which is not surprising if claimants don’t need to prove fault.   No-fault compensation would increase the overall compensation bill substantially.  

4. There is no crisis in clinical negligence compensation costs

The National Audit Office found that £482 million was paid out in 2012-13 for NHS maternity claims in England alone. Such claims accounted for a third of the total NHS clinical negligence bill.

Clinical negligence claims inflation is doubling every seven years. A claim that would cost £9 million if settled today, will cost £18 million in seven years time. Clinical negligence claims represent NHS money that could be spent on patient care. Claims inflation is increasing at a level much higher than any other type of inflation, such as wage inflation. We cannot afford to continue to pay claims escalating in this way.

5. Escalating damages costs are inevitable because of increasingly advanced medical care

One of the major factors in the rising cost of compensating patients is the cost of providing long term medical and social care for badly damaged patients.

With urgent legal reform, damages payments could be controlled while still ensuring patients get appropriate NHS care and treatment. The MDU suggests repeal of section 2(4) of the Law Reform (Personal Injuries) Act 1948, which specifies that NHS care must be disregarded so the cost of future care is calculated on the basis that it will be provided privately. 

All personal injury defendants, including the NHS, should be able to fund packages of medical and social care through the public sector instead. This would provide an additional funding boost to the NHS and social care services. It would also allow money paid by the NHS in damages to be retained by the NHS for the benefit of all patients, including those who cannot prove negligence.

Dr Christine Tomkins is chief executive at the MDU