Do we want to live in a society where the legal system for dealing with clinical negligence claims can adversely affect access to healthcare?
The question is pressing as the soaring cost of clinical negligence compensation continues to divert resources from patient care and the cost of indemnity for doctors and other healthcare workers affects their decisions about taking on higher risk activities within their specialty, or entering specialties where indemnity costs are disproportionately high relative to their income. The NHSLA recently estimated that it will pay £1.4bn in the coming year to compensate patients bringing medical negligence claims. £1.4bn could fund, for example, around 10 million MRI scans. The NHSLA’s total estimated liabilities are currently standing at £28.3bn according to the NHSLA accounts for 2014/15. This is more than double the figure of £13.4bn in 2009. The MDU’s own figures show that medical negligence claims inflation has been running at about 10% per annum for some years.
Damages awards in England are now higher than almost any other country in the world. This has implications for the NHS, for doctors and other healthcare workers, for patients and tax payers.
The kneejerk response from some is to blame doctors. If patients were not harmed by avoidable errors, the argument runs, then the number of claims would automatically fall.
This is simply untrue. Various studies have shown over the last 25 years that there is no strong correlation between adverse incidents and claims and complaints. A study published this year by Dr Paul Goldsmith et al examined the question of whether clinical incidents, complaints and medico-legal claims overlap, using data from a large NHS trust. The authors found that most complaints and claims were unrelated to a clinical error and made this point:
“It may be considered that a perfect system with no errors would consequently have no complaints or medico-legal activity. In this hypothetical situation, this may be true. But our results suggest that even if we were in a low error system, there would still be considerable complaints and claims.”
This is disheartening, particularly when the evidence shows that professional standards are constantly improving. The GMC has a statutory process for assessing whether a doctor’s fitness to practise is impaired. Between 2006 and 2014, the number of doctors on the Register increased by 11% while the number of doctors who were referred to a Fitness to Practise Panel actually fell by 22%. Clinical outcomes and survival rates for many conditions are improving all the time – but along with this comes higher patient expectations and a redefinition of the standard of success upwards.
Another confounding factor is that most claims are not upheld. They do not withstand detailed expert scrutiny and in 2014 the MDU successfully defended nearly 80% of claims brought against our members.
So the contention that if doctors stopped hurting their patients the claims problem would be solved does not stand up. Doctors are not to blame for the rise in claims frequency and costs and those who choose to say so divert attention from the real and complex factors at work. Many of the drivers for the deteriorating claims situation lie in the legal system.
Unfortunately, reforms in the civil justice system in recent years have driven up claims frequency, costs and compensation awards. These changes include:
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the introduction of conditional fee arrangements, success fees and recoverable ‘after the event’ premiums, following the Access to Justice Act 1999
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changes to the discount rate in 1998 and 2001;
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the increase in general damages under the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO).
On top of this, judgements interpreting the law often raise the bar for successful defence of a claim. Improved standards of care have improved longevity and annual care costs remain on a steep upward trajectory, driving damages awards ever higher.
There is no short-term easy fix to the problem of the rising costs of clinical negligence claims and their rising frequency. Risk management measures and improved standards of clinical care are important for patient safety but they have not reversed the deteriorating medico-legal climate. We must look to reform of the civil justice system to address this problem. It really is time everyone woke up to the grave issues we face under the current clinical negligence system and the consequences of it for doctors and patients.
The MDU is currently campaigning for a package of legal measures that will make the claims system more proportionate and sustainable.
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