The Medical Protection Society, a group formed to support the medical profession (including in their legal claims), has proposed a radical change to the way that clinical negligence clients are dealt with. It is not a helpful addition to the debate.

A fundamental principle of law is that if you suffer injury or loss through the negligence of someone who owed you a duty of care, you are entitled to be put back as far as possible in the position that you were before the event occurred. In other words, you should receive compensation sufficient to place you back roughly where you would have been but for the negligence. If you can no longer work and previously earned £60,000 a year, then you should be able to recover the net income that you would have taken home at that rate. If you need equipment to assist you with tasks which you could previously do unaided, then the cost can be recovered.

For the MPS however the people who suffer loss caused by the negligence of the medical profession should be in a different class from those who suffer through any other type of negligence. If you suffered as a result of a doctor making a mistake (where the consequences could be disastrous) then the MPS proposes that you should not receive the same level of compensation as anyone else. Their proposal is that there should be a limit on what you can recover regardless of your loss.

Further, they consider that there should be a limit on future earnings recovery. This should be based essentially on national average weekly wages. If you are a higher earner that obviously puts you in some difficulty. It is not clear but I would suspect the proposal does not mean that those who are lower than the national average will recover more and at the rate of the national average either.

In addition, the MPS wants to limit the number of expert reports that can be commissioned to support a case. On the face of it no doubt this seems attractive, cutting legal costs. But actually, there is a process for this already. It is called a judge. The role of the judge once proceedings are issued is to manage the case. The judge makes the decision about how many experts are required and can be relied upon to support a case. This is having heard arguments from both sides about what experts are needed. In clinical negligence there is very rarely a significant dispute as to the number of experts that can be used. It is some surprise therefore that apparently the MPS do not feel that the judicial system can be trusted.

Of course, this is all wrapped up in the costs to the NHS (although we must remember that a considerable number of MPS members are not NHS employees) in clinical negligence claims. Therefore the costs issue is considered more important than the principles of law .

It is certainly true that the costs can be substantial. However, as all claimant lawyers would say, if the NHS legal teams would stop for a moment when they get a case, review it properly and defend only those cases that are actual defensible then most of the costs would be reduced significantly.

Every year, there are cases in which costs are awarded against the defendant as a result of the conduct in proceedings. There are also costs awarded in cases that should never go to trial. Last year for example, there was a case of JRM v King’s College Hospital Foundation Trust. This was a claimant where a baby was injured during birth as a result of excessive force used in forceps delivery. The forceps had been placed incorrectly by the obstetrician. The witness evidence for the defendant suggested only gentle traction was used. This was despite the baby going into paediatric intensive care, with significant injuries (including a spinal cord injury), testimony from the father who had been there at the birth and photographic evidence of the nature of the appearance immediately after birth.

The judge considered the medical witnesses’ evidence as unreliable. He was very critical of whoever it was who decided that the claim should be resisted on the basis that the delivery was straightforward and unremarkable. This clearly flew in the face of the evidence. The cost to the NHS of defending the indefensible would have been substantial.

Rather than continually complaining about the costs that are incurred as a result of clinical negligence claims, there are two matters that the NHS and the medical profession as a whole could do to avoid this.

Firstly, learn from the mistakes that are made and put in place protocols which reduce negligence in the first place.

Secondly, do what the duty of candour was supposed to do which is admit the facts at the outset. Stop defending cases which are just indefensible. Start working with claimant lawyers and agree issues that really cannot be disputed.

I have lost count of the number of cases where I have to issue proceedings because there is a denial of liability and yet some way down the line, usually when experts get together, the NHS agree to resolve the matter amicably. This is when our experts have said, they cannot understand why the defendants are challenging and defending the case. Of course there are cases that are legitimately defended but there are also a sizable minority which should not be defended at all. They should simply be quantified and resolved.

This proposal from the MPS suggests that for whatever reason, people who suffer negligence as a result of the medical profession should be deemed to be lesser individuals. The law should be changed so that they don’t have to receive the same amount of compensation as somebody else. This is simply because a doctor was negligent. If there is a problem with your heating and you suffer carbon monoxide poisoning and brain damage as a result, apparently you should be entitled to full compensation. If it is a doctor that causes your brain damage apparently you should not.

The proposal is legal nonsense. It flies in the face of the principles of law and it treats clinical negligence suffers as second-class victims. It is also deeply insulting to those whose lives have been devastated by the actions of the medical profession. It may have been an innocent mistake by the medics but the effects can be catastrophic and life changing. Those people deserve our sympathy and a fair system of compensation.

The MPS should be ashamed of themselves for the proposal. Instead they should work with their doctors to try to reduce the negligence overall and work to resolve all issues that can be resolved in a claim at the earliest possible opportunity without incurring unnecessary costs.

  • A clinical negligence solicitor whose background in nursing gives her powerful insight into the medical world and great client empathy.
  • Admitted as a solicitor in Ireland as well as England and Wales.
  • Specialises in surgical, cardiac and emergency medicine cases but has a full range of medical issues in her caseload.
  • Chambers and Legal 500 rated: “Streetwise, sensible and extremely knowledgeable.” “Extremely experienced, excellent client handling.” “Very thorough lawyer who makes good use of her nursing background.” “A top-quality clinical negligence lawyer.”