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Why Patients Make Claims for Clinical Negligence

The NHS (National Health Service) in England is in very deep water when it comes to the increasing costs of clinical negligence claims made against it. NHS litigation compensation damage awards and costs over  recent years have shot upwards to reach record heights threatening some would argue the very sustainability and fabric of the NHS. The increase in litigation against the NHS is well documented in terms of levels and trends over time. However, what is less clear is the motivation behind patients suing.

Why patients sue

NHS Resolution, the NHS Special Health Authority that organizes the defense of NHS trusts (hospitals) and other NHS bodies when legal claims are made against them, has just published a report that looks at what motivates patients to go to an attorney and embark on formal legal proceedings to recover compensation.

The report holds no surprises and states clearly what everybody who acts for patients in clinical negligence cases and who defends health care staff has known for years: It’s all about how we talk to and engage with patients. It’s about using proper communication strategies.

NHS Resolution undertook the research work with The Behavioural Insights Team (BIT) which works in partnership with the Cabinet Office. The research analysed through a survey the experiences of 728 patients and this included in depth telephone interviews with 20 patients.

Several survey findings were made and include:

No explanation: The report found that almost two thirds (63 percent) of survey respondents felt that no explanation was given to them. The majority of those that did receive an explanation had to wait 10 days or more to receive it after the incident.

Apology: Less than one third (31 percent) felt they received an apology. A minority rated highly that an apology that was received.

Incident investigation: This was a very poor and worrying finding. Seventy-one per cent, most respondents did not think that their health provider undertook any actions initially to investigate what went on.


Several interviews were carried out for the report.The following  themes emerged  on how the health care complaints process operates:

  • Poor communication and the complaints process
  • The complaints process was opaque
  • The communications lacked appropriate tone and compassion
  • Better complaint handling may have prevented patients from making a legal claim
  • The complaints process was impersonal
  • The communications were incomprehensible to lay people
  • A better apology and explanation following investigation
  • More honesty and transparency.

Survey Findings:

The survey asked patients for their reasons why they decided to make a legal claim. A variety of factors were found, including anger and frustration, to prevent similar things happening to others, to get an apology, to get a detailed investigation an explanation of the incident, to hold clinicians involved to account.

It is clear from the themes identified in the report that issues surrounding patient motivation are essentially communication failings which should be easily remediable by health care staff. However, these findings are not new, and can be seen in numerous past reports by a host of other health organizations. It seems very difficult in practice to rid the NHS of its prevailing defensive  culture when things go wrong to patients.

Useful data

The report does provide some very useful data on patient motivation to litigate and the research is presented in a clear and informed way. In terms of patient safety only 6 percent of patient respondents, according to the report, felt that actions were taken that would prevent the same incident from happening again.

The overall message

The message from the report is clear. Following a patient adverse health treatment or care incident, the response by the nurses, doctors, and the organizations in the NHS must improve. Communication failures by health professionals and others motivate patients to litigate.

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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