The MDU's proposal for a negligence cap would be bad for patients

In a little reported press release over the summer, the chief executive of the Medical Defence Union, Christine Tomkins, called for part of the Law Reform (Personal Injury) Act 1948 to be repealed and a cap on future care and loss of earnings awards; this was to help address what she described as the ever growing cost of clinical negligence claims.

‘The proposals won’t necessarily reduce the financial burden on public funds and certainly wouldn’t be in the best interest of patients’

The background to this is a “spike” in the number of claims that have been issued at court, probably due to a distortion effect of the Jackson funding reforms in April 2013.

There has also been an increase in the level of damages paid in the average catastrophic injury claim, due partly to improvements in medicine and increased average life expectancy.

The MDU is now paying significantly more claims over £1m on behalf of its doctor members than it was 10 years ago. Interestingly, however, Dr Tomkins referred to the strain on the NHS and the UK taxpayer when making her case for reform, rather than the increased costs being faced by the MDU and its members.

Who carries the burden?

In my opinion, Dr Tomkins’ proposals are misguided for a number of reasons. First, repealing section 2(4) of the 1948 act – whereby a claimant is allowed to disregard NHS services and calculate care and treatment costs on a privately funded basis – would clearly be to the MDU’s advantage, but would not necessarily reduce the burden on the NHS and the taxpayer.

• Who pays when it goes wrong? The uncertainty of private providers in the NHS
• The no fault compensation model needs a radical overhaul
• Wilful neglect offence to become law by 2015
• Christine Tomkins: Debunking the myths about the clinical negligence bill

In a catastrophic injury claim for example, the majority of the claimant’s care needs will be social care rather than for medical treatment, and although these can now be provided on a privately funded basis, it would fall to local authorities to provide this care under Dr Tomkins’ scenario – and possibly the NHS, given austerity cuts.

In short, the burden would ultimately be on public funds rather than the MDU.

Bigger issues at play

The NHS Litigation Authority has examined the MDU’s proposal and highlighted their use of periodical payments with reverse indemnities or contingent settlements as a way of ensuring that claimants do not unjustly prosper from their claims.

‘The MDU’s proposed reforms are simply not warranted or justified

Its view is that while the 1948 legislation is outdated, there are in fact much broader issues involved in the cost increase than those described by Dr Tomkins.

It is perhaps then worth scrutinising the proposed legal justification Dr Tomkins gave for reform.

She said: “Medicine is complex and it is not risk free. We must all do all we can to prevent avoidable harm to patients, but not all harm is avoidable. The risks and benefits of treatment have to be weighed in the balance.”

There is an implicit suggestion here that the threshold for establishing breach of duty for liability in a claim for clinical negligence is something other and less than that set out in the Bolam test, which requires that no responsible body of medical opinion can support the defendant clinician’s act or omission.

Define fairness

She continued: “Errors do happen but thankfully are rare and patients who are negligently harmed must be fairly compensated but to keep on paying multimillion pound awards is not sustainable.”

‘It would ultimately be injured patients who would suffer because they would no longer receive the best possible future care’

The problem here is Dr Tomkins’ definition of “fair”. The law defines fairness as putting the injured victim, as far as possible, into the position they would have been had the negligence not occurred.

However, capping the cost of future care and lost earnings does not reconcile with this basic principle of tort law. Seeking lost earnings to be limited by reference to artificial and arbitrary constructs, such as a cap at three times national average salary, as the MDU proposes, would effectively be asking Parliament to consider how damages are to be calculated.

Clarity about the outcomes

The MDU’s proposed reforms are simply not warranted or justified. They won’t necessarily reduce the financial burden on public funds and certainly wouldn’t be in the best interest of patients.

If the union’s proposals were to be enacted, it would ultimately be injured patients who would suffer because they would no longer receive the best possible future care or medical treatment, which experts have determined they reasonably require due to negligence.

Furthermore, all cases involving MDU members – and other defendants insured by similar organisations – would in future see the vast majority of their future liabilities paid for or offset by the NHS, and by extension, the taxpayer.

Depending on your point of view, this may or may not be an acceptable state of affairs, but one should be clear, if inclined to support Dr Tomkins’ proposals, about what the final outcome would be.

Sarmad Gassoub is a solicitor in the clinical negligence team at Kingsley Napley LLP