There has been much coverage in the press of late about the surge in the number of clinical negligence claims that are being brought and the consequential and devastating effect that this is having on the already over-stretched NHS budget. The Law Gazette recently reported that the Medical Defence Union “MDU”, which indemnifies clinicians against claims, has reported an all-time high of litigation against their members. They say that 2011 saw an increase of 10% in the number of active claims managed by them and they expect this trend to continue in 2012.
Earlier this year a report from the NHS Litigation Authority showed the value of payouts for clinical and non-clinical claims in 2011-2012 increased by 46% from last year’s bill of £911million. Compensation for patients harmed due to clinical negligence totalled £1.28billion, a fact which the press were only too quick to pick up on. With a number of one-sided stories quoting statistics designed to scare the tax payer, it didn’t take long before the clinical negligence lawyers acting on behalf of those receiving these damages payouts were being targeted as one of the main causes for the NHS’ increasing costs.
The main complaint is that solicitors offering “no win, no fee” conditional fee agreements (where the claimant pays nothing if their claim is not successful) encouraged litigants to pursue claims which lack merit on the basis that there is no financial risk to them if their claim is unsuccessful. However, the reality is that no-one brings legal proceedings lightly. The emotional and time cost is too great. Patients bring clinical negligence claims because they have been injured by their healthcare. Patients only succeed in bringing such claims when they have been injured by care that is so poor that no reasonably competent clinician would have provided it.
The level of damages awards has also been criticised by the Chief Executive of the MDU, Christine Tompkins, who said “Our next campaign on behalf of our members is to persuade the government to address the costs of damages awards themselves” and went on to note that some individual settlements rose to more than £5million. Out of context, figures such as this can seem incredibly high and may cause people to wonder whether there may be some credence in the argument. However, it is important to bear in mind that the legal basis of a damages claim is to put the claimant back in the position that they would have been in if the negligence hadn’t happened (so far as it is possible to do so). The cost of providing ongoing care, therapy, specialist equipment and adapted accommodation - in the cases involving the most serious injuries (such as spinal injuries or brain damage), can be significant, and it is these types of case which attract the level of damages referred to above.
So why are the number of medical negligence claims rising? Some commentators suggest that people are becoming more litigious and this accounts for the rise in the number of claims being brought. An alternative suggestion is that, with ever-increasing pressures on NHS resources, comes an impact on patient safety. The suggestion is denied by Jill Harding, head of claims for the MDU, who said “The increase in claim numbers is not, we believe, driven by deteriorating standards of care, or a change in the underlying type of incidents that are giving rise to claims.”
Whatever the cause of the increase in clinical negligence claims, the government is implementing changes in April 2013 designed to reduce the costs associated with these claims. There is concern in the profession that the changes limit claimants’ access to justice by limiting the options for bringing claims and reducing the compensation available. Nonetheless, what is clear is that those who are injured by medical negligence have a right to claim compensation for their injuries.