Weighing the cost: why the human cost of clinical negligence is more important than the bill
In an article published today by the BBC, it is suggested that NHS England “faces paying out £4.3bn in legal fees to settle outstanding claims of clinical negligence”.
The article quotes a representative of the Medical Defence Union, an organisation indemnifying doctors against claims, as saying: “This is money that should be going to healthcare, but instead is going to compensation claims – which is impairing all of our access to healthcare”.
The misleading headline and the undermining statement from the MDU ignore entirely the enormous impact upon those whose lives have been changed forever due to entirely avoidable harm because of a mistake made by the NHS.
Our clinical negligence team meet families on a daily basis who have no desire to sue the NHS but feel the only way to get answers about the failings in their care and to ensure the same doesn’t happen to someone else, is to seek advice from us. Any award of damages is a hollow victory for patients and families; compensation does not bring back a lost loved one, or give a child the life they might have had but for a disabling injury.
Why do NHS patients need to be compensated?
The NHS 2018/2019 report referred to in the article shows that 10% of the total clinical negligence claims received in 2018/2019 were obstetric (pregnancy/birth) claims, but they represent 50% of the value of those claims. As a representative of the Association of Personal Injury Lawyers explains: “This is often because a child injured at birth will need a lifetime of care”. In this type of claim, a child who is caused a serious disability due to negligent care at the time of birth is likely to require specially adapted accommodation, round-the-clock care, assistive technology, multiple therapy regimens and many other types of assistance across decades.
At the point of settlement, the amount of compensation is approved by the NHS and its legal advisors and, in most cases of this type, it will also be independently approved by the Court. It seems deeply unfair to imply that their compensation is exaggerated or out of control and that it is necessary to appoint an unspecified ‘independent body’ to assess claims, as suggested by the MDU.
How do claims help improve the NHS?
The importance of the claims process in bringing about positive change in patient safety cannot be underestimated. The ability of patients to hold the NHS to account for avoidable harm encourages accountability for mistakes and is often an instigator for internal and external review of safety, with the aim of improving the standard of care for future patients.
It can therefore be frustrating for victims of medical negligence, their families and those representing them to read articles such as the one published by the BBC today portraying their struggle for justice as damaging to the NHS who are wholly responsible for their situation.
In terms of the statistics quoted in the article, the NHS 2018/2019 report states that claimants’ legal costs in fact reduced by £24.3m compared to the previous year. The article quotes a figure of £83bn for the total outstanding costs for compensation claims, pitted against their 2018/2019 budget of £129bn. On closer inspection, the report actually explains the £83bn quoted is liability for all types of claims, including non-clinical negligence claims, and also represents an estimate of all future claims, as opposed to a single year as suggested by the direct comparison to a single year’s budget. In addition, the report points out that in 2018/2019, NHS England noted an increase of only five claims received compared to the previous year.
It is arguable that attempts to reduce claimant legal costs might be better served by the NHS providing answers and early admissions, where appropriate, rather than suggesting patients should not be adequately compensated.
On reading headlines such as today’s, it’s important to remember that removing or limiting access to justice for victims of medical negligence would be to deprive those who have suffered entirely avoidable injury from compensation aimed at meeting costs such as care and specialist equipment or lost earnings. It would also remove an important and effective method of ensuring improved safety levels for future patients.
Action against Medical Accidents (AvMA) said in response to the article: “We mustn’t let the financial costs of these claims blind us to the enormous human costs. These cases are completely avoidable and the government needs to focus on better patient safety to avoid errors in the first place.”