The Rising Cost of Clinical Negligence: Who Pays the Price?

By John Tingle

The Medical Protection Society (MPS) have recently published a report arguing that the rising costs of clinical negligence needs to be urgently controlled. They state that the NHS is struggling under the increasing burden of clinical negligence costs and suggest some reforms.The report is detailed and thorough and raises some good and interesting points but in reading it, it should be remembered that there is also a very good contrary position that can be advanced by those who act for patients in clinical negligence litigation. This report puts the issues to test.

The Report

The report begins by looking at the increasing costs of clinical negligence claims. Costs have increased over the years and the figures are stark. The report quotes figures from NHS Resolution, the new name for the NHS LA (National Health Service Litigation Authority) who estimates that the provision for future clinical negligence costs, relating to claims arising from incidents that have already occurred, stands at £56.1 billion:

“Expenditure on clinical claims by NHS Resolution increased by 72% (11.5% a year on average) over the five years to 2015/16. Should this trend continue it risks becoming wholly unsustainable for the NHS and wider society, which ultimately pays for these cost. Last year alone, nearly £1.5billion was spent and, put into context, this equates to the cost of training over 6,500 new doctors.(p4).”

It is important to look at the reason for these costs. As the adage goes, ‘there is no smoke without fire’.Clinical negligence claims don’t exist in a vacuum, they are being brought for a reason, a patient alleges that they have suffered negligent treatment which has caused or materially contributed to the injury that they have suffered. As Peter Walsh, Chief Executive of AvMA, the UK charity for patient safety and justice states on the MPS proposals:

These proposals ignore the main reasons for the high cost of clinical negligence to the NHS. These are firstly, the unacceptable number of negligent mistakes being made that ruin peoples lives, nd secondly the inappropriate denials and defence of claims which should have been recognised as valid much earlier. Collectively, they amount to either an ignorant or cynical attack on access to justice for injured patients.”

The MPS also express concern about the impact that the fear of being sued may have on healthcare professionals, both in terms of defensive medicine and on their health and wellbeing.

The MPS argue in the report that it is simplistic to assume that a singular focus on improving patient safety and enhancing the quality and reliability of care delivery will alone result in a significant reduction in clinical negligence litigation and complaints. Our understanding of the drivers of clinical negligence claims needs to improve to help inform prevention strategies.The report calls for more UK based research on what cause patients to sue, there is an information gap on recent UK experience. What constitutes an adverse outcome or patient safety incident appears to be evolving, and may be viewed from different perspectives by the patient and the doctor.

Recommendations include:

  • Increase understanding of clinical negligence drivers
  • Increase understanding of specific risks
  • Increase focus on education and risk management
  • Improve culture and systems for dealing with concerns

A limit on future care costs, based on the realities of providing home based care.A tariff would be set for annual care costs, dependent on injuries, with an overall cap.

  • A limit on future earnings which recognizes national average weekly earnings.
  • Consideration of a minimum threshold for cash compensation for pain, suffering and loss of amenity (PSLA) in clinical negligence claims.
  • Introduction of a system of fixed recoverable costs (FRC) for all clinical negligence claims up to a value of £250,000.

The aim of saving the NHS money is a laudable one to which we would all agree. The way to do this is surely to look more closely  at the drivers of clinical negligence claims and to try and stop the errors happening in the first place. These are priorities, the reports recommendations about reforming the clinical negligence system are much more problematic and I don’t see these helping patients who are always the weaker party in the care equation.

John Tingle

John Tingle is a regular contributor to the Bill of Health blog. I am a Lecturer in Law, Birmingham Law School, University of Birmingham, UK; and a Visiting Professor of Law, Loyola University Chicago, School of Law. I was a Visiting Scholar at Harvard Law School in November 2018 and formerly Associate Professor at Nottingham Law School, Nottingham Trent University in the UK. I have a fortnightly magazine column in the British Journal of Nursing where I focus on patient safety and the legal aspects of nursing and medicine. I have published over 500 articles and a number of leading texts in patient safety and nursing law. My current research interests are in global patient safety, policy and practice, particularly in African health care systems. My most recent publication is: "Global Patient-Safety Law Policy and Practice," edited by John Tingle, Clayton O'Neill, and Morgan Shimwell, Routledge 2018.

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