By John Tingle and Amanda Cattini
The issue of the high and increasing costs of clinical negligence (medical malpractice) in the National Health Service (NHS) in England has long been a contentious one. There are common themes in the debate. The economic arguments supporting reform explain that the NHS is spending a considerable amount of money out of its health budget on malpractice claims, which otherwise could be put into front line health care services. While the economic arguments are important, others contend that the patient’s voice must be heard more widely in the reform debate. They emphasize that it is important to look deeper as to what compensation means to victims of clinical negligence, and caution against unnecessarily fettering patients’ reasonable pursuit of claims.
Two recently published reports provide several key perspectives on these issues.
The Written Evidence of the Department of Health and Social Care (DHSC)
Most recently, the House of Commons Select Committee on Health and Social Care NHS Litigation Inquiry have discussed the costs of clinical negligence and the current tort-based compensation system in some depth.
The Department of Health and Social Care (DHSC) have provided two pieces of written evidence to the NHS Litigation Inquiry, (NLR0070) and (NLR0072).The written evidence gives a well thought out and comprehensive analysis and review of the issues. The costs of clinical negligence are stated in clear terms:
“The costs of clinical negligence claims are rising at an unsustainable rate; annual cash payments have quadrupled in the past 15 years to £2.2 billion in 2020-21, equivalent to 1.5% of the NHS budget. In addition, claimant legal costs are frequently disproportionate to the level of damages (compensation) awarded, particularly in lower value claims.”
Another interesting aspect of the written evidence is the discussion of the NHS high per capita spend on claims. In the evidence is Table A, which gives clinical negligence claims and data across the different jurisdictions. The NHS has been spending an increasing proportion of its resource budget that would otherwise be spent on patient care on claims. The spending on claims is significantly more than some other countries:
“However, neither the Government’s own enquiries nor the published literature have yet yielded a full explanation as to why per-capita spending on claims in this country appears significantly higher than in all these other countries. While cost of claims per capita in England was £42.1 in 2018-19, for the same year in Scotland this was £6.9, in Sweden it was £5 and New Zealand it was £18.7.”
The DHSC written evidence provides a detailed analysis of how the tort based clinical negligence system works in the English NHS and key points are made in a well-balanced discussion that is also related to patient safety.
Association of Personal Injury Lawyers (APIL) Report Findings
APIL commissioned a research report from Opinium Research with the stated goal being “to better understand how financial compensation affects the lives of patients who have been injured as a result of NHS negligence.”
The report provides some unique insights into the clinical negligence system and its impact on patients. A leading theme is that the NHS clinical negligence/malpractice debate is too often based on costs and not enough on those who have suffered from the negligence:
“In the NHS negligence compensation debate, too often the emphasis is placed on the cost to the NHS and not on the people who have suffered due to negligence. This human-centric research puts the spotlight back onto patients and provides a platform for them to talk about their experiences in an open and honest way.”
The findings of the report are wide ranging and cover several key issues which will benefit from more research, as the issues are multifarious and complex. Topics discussed include the importance of recognizing negligence and wrongdoing:
“Many patients mention their admiration and respect for the NHS and the work that they do, and some mention not feeling particularly happy at having to take action against them. However, it is considered important that negligence and wrongdoing are recognised and equally that these experiences are not repeated for others.”
In conclusion, the reports discussed above provide some excellent insights into the current clinical negligence/malpractice debate in the NHS in England. The Government is considering possibly wide ranging tort reform. In these discussions, it is important not to forget the patient’s perspective and needs. The debate should be careful not to focus primarily on economics and cost containment. A balanced treatment of issues is required.