In discussing clinical negligence litigation in England it seems there are two opposing views on what is going on and the need for reform. On the one side we have the doctors' defence organisations arguing for urgent reform to stem the tide of clinical negligence litigation and reduce the costs associated with this (‘Camp 1’).
On the other, we find those warning that any reforms must not interfere with the patient's inalienable right to access justice and to receive just compensation for negligently inflicted injury (‘Camp 2’).
Camp 1: Saving NHS resources
The Medical Protection Society (MPS) (2017), when discussing the increasing costs of clinical negligence claims, states:
‘To pay for this, the NHS is diverting a significant amount of its funding away from front-line patient care towards claims. At a time when the NHS is facing tough financial pressures and must make difficult decisions about how it allocates its limited and precious resources, there is an urgent need to review the money spent on compensation for clinical negligence. Finally, we are also concerned about the impact the fear of being sued is having on dentists and doctors' health and wellbeing and the way that they practise.’
The Medical Defence Union (2021) is one signatory to a letter to the government calling for action on clinical negligence claims costs ‘to aid NHS pandemic recovery’ and urging the government to address the ‘unsustainable costs’ posed by clinical negligence litigation with the NHS in England facing outstanding claims estimated at over £84 billion. This cites Treasury figures showing the provision for clinical negligence claims is now worth £3600 for every household in England, compared with £700 10 years earlier.
There has been a clarion call for clinical negligence reform over the years as costs have increased. The exact reasons for the increase in costs and claims is subject to conjecture and there is ongoing research into the issue. The National Audit Office (2017), for example, pointed out that factors include not only a higher volume of claims but also increases in average damages, and in higher legal costs for the claimants (which will also have to be paid by the NHS if the claim is upheld).
‘The fastest percentage rise was in claimant legal costs … The rise in the number of claims and claimants' legal costs for clinical negligence is closely associated with recent legal reforms and market developments in legal services.’
National Audit Office, 2017: 8-9
The government has said it is looking into reforming the clinical negligence system, although what exactly this should entail has not been made explicit (Hyde, 2021).
Momentum for reform
We can see that momentum for reform of the clinical negligence system is gathering some pace. However, it is important that the government tries to listen to all stakeholders.
Yes, we all acknowledge that clinical negligence compensation claims do run into many millions of pounds, such as for brain-damaged babies. Yes, the NHS would greatly value the money given as compensation to put towards frontline care, but we must never forget that lives have been ruined because of the negligence of those who were meant to care for that mother and baby.
Our tort-based civil justice compensation system is designed to try to put the injured parties back in the position that they would have been in had the negligence not occurred. Money can never adequately do this and is a poor compensator for the loss of a faculty, amenity or life. The economics must balance against the inalienable rights of patients to have fair access to the justice system for compensation for negligently caused harm.
Camp 2: The right to just compensation
Action Against Medical Accidents (AvMA) (2021), the UK charity for patient safety and justice, makes a telling statement that I would fully subscribe to:
‘In AvMA's experience, most people do not want to take legal action if they can avoid it. Many feel forced to take legal action because of a lack of openness and honesty; to hold people to account; or because this is the only way available to get the compensation they need and deserve.’
Litigation should always be seen as a last resort—if a case can be settled without going to court, then it should be. Litigation in any area, on any topic is time-consuming, expensive and stressful for all concerned. AvMA (2021) also argues that the right to bring a civil claim is a fundamental right and that genuine access to justice in clinical negligence cases benefits society. This is another view that I would fully subscribe to, and which fits the Camp 2 perspective.
The government review
In reviewing the clinical negligence system, the government does need to consider views and to balance the issues. Camp 1 has legitimate concerns that require consideration and Camp 2 views also need balancing in any reform equation. The key matter that I see as critical is not to ‘throw the baby out with the bath water’. To develop a no fault-based system, which has been mooted by some commentators and stakeholders, would do just that. We need to keep the tort compensation that we have. It is, in my view, conceptually sound and can be seen to work as an effective mechanism of deterrence, accountability, education and loss distribution.
The patient safety landscape
When discussing the reform of the clinical negligence system and the views that underpin the debates, it is important to also consider the present context of patient safety in the NHS. If health professionals practice safely and reflectively then as a matter of common sense there will be fewer adverse incidents and less litigation. At the same time, in fairness, it is important to acknowledge that some degree of error will always be inevitable. We are dealing with humans delivering care to other humans in often complex healthcare environments. Nobody is infallible. The best we can hope to do is to manage risk.
However, when we look at reports of Care Quality Commission (CQC) inspections and media reports of patient safety crises, our confidence in the NHS's ability to deliver safe care does take a profound hit. Reading the CQC reports and the failures that have been identified presents us with a clear and stark picture of why some patients affected by failures identified in the report could, and do, sue. Yes, we can talk about balancing economics, the sanctity of safeguarding scarce NHS financial resources, and managing the rising costs of clinical negligence, but we must not forget that we have some patently unsafe healthcare environments to contend with. The economic arguments can be seen to wane here when the reality of some areas of NHS care are revealed, such as the recent CQC inspection of University Hospitals of Morecambe Bay NHS Foundation Trust (CQC, 2021).
Lintern (2021) gave essential context for this report:
‘Maternity care at the trust's Furness General Hospital was heavily criticised by an inquiry in 2015, led by Dr Bill Kirkup, which labelled the unit “dysfunctional” and described a “lethal mix” of failings by the trust and wider NHS which directly led to the avoidable deaths of 11 babies and one mother. Since then, Morecambe Bay has been a by-word for maternity failure and the Kirkup inquiry triggered a suite of national initiatives to try and improve the care of mothers and babies in the NHS.’
CQC inspectors' findings included:
‘Inspectors saw that risks were not always identified correctly with appropriate mitigations put in place ‘Women receiving maternity care, who were assessed for the risk of sepsis, did not always receive care and treatment in line with national guidance
‘It was not clear if national guidance was followed to identify signs of deterioration as they were not always documented in patient records
‘It was not always clear if all risks to women in labour were assessed, including when risk levels changed from low to high, with a need to escalate care safely
‘There was no assurance that incidents were graded to reflect the level of harm.’
The CQC also had some positive findings, which included.
‘In surgery there was enough staff to care for patients and keep them safe ‘Staff were focused on the needs of patients receiving care; they provided compassionate care and gave patients enough to eat and drink
‘Staff worked well together for the benefit of patients, advised them on how to lead healthier lives, supported them to make decisions about their care, and had access to good information.’
Conclusion
Some reform of our clinical negligence system is imminent, this could be root and branch reform or just adjustments to some components. Overall, our clinical negligence system does work well. Stemming the costs of litigation involves much more than refining the mechanics of the system of compensation. We also need to look beyond, at the way care is delivered in the NHS.
The NHS is still weak at learning the lessons from past patient safety adverse incidents. We can accept that some degree of error is inevitable in a system that depends so heavily on human resources, judgment and interventions. However, organisations must maintain a patient safety memory and take resolute steps to avoid errors occurring. Sadly, CQC reports are replete with repeated patient safety errors showing that the learning from previous reports has not sufficiently taken root.
I am not too sure what the solution to all this is. The CQC reports do highlight good practices. However, the good practice is often eclipsed by the poor practices identified. How do we enshrine patient safety learning across the NHS? NHS staff are now arguably swamped by good patient safety advice, and this all needs distilling into manageable chunks. We have a patient safety information overload. We have not yet worked out how to cascade this essential patient safety information down through the many tiers of the NHS. We don't sufficiently encourage staff to make sustainable patient safety changes and develop a patient safety culture. Much more can be done.
When considering clinical negligence system reform, we must also focus on the causes of repeatable avoidable patient harm and error. If poor care is present there will always be the risk of litigation taking place.