The debate continues about the high cost of clinical negligence claims in the NHS. The CEO of the Medical Defence Union (MDU) recently had a letter published in The Times, arguing that the government must get to grips with runaway clinical negligence costs:
‘This unsustainable situation is driven by an outdated legal system rather than deteriorating clinical standards. Legal reform is desperately needed.’
Such clarion calls for the reform of the clinical negligence system are frequently made in the media and the Medical Protection Society (MPS) and the MDU have long-standing campaigns in this area. They raise some well-reasoned arguments. The recent NHS Litigation Reform Inquiry (Health and Social Care Committee, 2022) closely considered clinical negligence reform including no-fault systems. The oral and written evidence submitted to this inquiry provides a rich and contemporary commentary on NHS litigation from both those who advocate reform and those who do not. The Government is currently looking at reform proposals and a consultation paper is promised (Hyde, 2022).
The debate
I have commented in previous columns about the entrenched positions of the parties in the clinical negligence system reform debate and it seems difficult to find a middle course. There is the economic view, which maintains that the prohibitive cost of clinical negligence claims is taking away much-needed NHS financial resources. Then there is the other side, which argues that if we had fewer cases of clinical negligence then the costs would not be so high, and also that a patient's right to access proper legal representation should not be compromised. High fees for claimants' lawyers are criticised by some and to balance the argument, it should be said that low-value claims can be just as complicated as high-value ones. Matters of causation can be complex in any type of case. When we have established clinical negligence, it should not be forgotten that we are dealing with patients who have been injured by those who were meant to care for them. Not intentionally injured, but negligently injured nonetheless.
Is there really a system?
To talk about the clinical negligence system is also a bit of a misnomer. In written evidence to the NHS Litigation Reform Inquiry, the Bar Council (2021:5) stated:
‘In law there is no ‘clinical negligence’ system rather clinical negligence is a label given to one type of tort claim. To put it another way the NHS is in law no different to any other tortfeasor. Litigation has never really been understood to encourage lesson learning and commitment to change and indeed to suggest the tort system should encourage this, as a principal aim, is to misunderstand the purpose of tort law which is to compensate the victim and not to punish or prevent recidivism by the tortfeasor.’
In law, there is no separate clinical negligence system, we are dealing with an area of the tort of negligence in civil justice. There are other torts such as trespass or defamation. If we tinker with what is incorrectly perceived as the ‘clinical negligence system’ then this will have a knock-on effect across the whole civil justice compensation system. We need to ask why we should treat the negligence of a nurse or doctor differently to that of, say, a negligent teacher, surveyor, or factory employer. What makes clinical negligence so different? Why should it be viewed as a special case?
The quote from the Bar Council also reveals an important reality of litigation that applies to all areas of civil justice. When a claimant starts a legal action, their primary aim is to win their case within an adversarial civil justice system, not to bring about system-wide changes and improvements. When some patients have been asked why they went to court, they have replied: to find the truth, to get an apology and to make sure that what happened to them does not happen to anybody else. This does happen but, in my experience, litigants also desire compensation. The fundamental aim of compensation is to put the claimant who establishes negligence back in the position that they would have been in had it not occurred, so far as money can do this.
Defensiveness and fault
We often see discussions arguing that our fault-based liability civil justice system leads to defensive clinical practices and acts as a disincentive to error reporting. A call then follows to consider the no fault-based liability schemes that exist in some other countries. The NHS has been accused of maintaining a defensive attitude to adverse events:
‘There seems to be a prevailing attitude of defensiveness in the NHS when things go wrong, and a reluctance to admit mistakes, which is likely to be leading to more clinical negligence claims.’
House of Commons Committee on Public Accounts, 2017: 3
However, the argument that our current tort-based compensation system stokes a negative defensive culture has been challenged.
‘We are not satisfied that the tort system (or clinical negligence claims) is fairly described as giving rise to a blame culture: the requirement of fault in the civil justice system is as old as the system itself (in fact much older) and if the system gave rise to a culture of blame this would have been an issue since the creation of the system, yet the so-called ‘blame culture’ is a very modern phenomenon.’
‘The idea that the blame culture is a product of litigation, or its fear is also mistaken. Indeed, the impetus to encourage apologies came from the indemnifiers and lawyers long before it was adopted by the GMC [General Medical Council] or the DH [Department of Health].’
Benefits of the present system
Compensation
I have said in previous columns that I reject the idea of root and branch reform of the system that compensates patients for clinical negligence. The system does what it sets out to do: it compensates patients injured by negligent harm. It does this in a system that has well established, tried and tested rules and procedures.
Deterrence
I would also argue that the tort-based compensation system is a useful mechanism of deterrence against poor clinical practice, nobody wants to be sued. Others disagree on this tort deterrence aim – see for example the discussion by Sumption (2017). The concept of vicarious liability and insurance has watered this down, though it is still a valid outcome.
Education
Tort law is also a useful mechanism of education, we can all learn from the cases set. However, there is an important caveat to this. There should always be detailed research before clinical practice is changed by any litigation case. Changing clinical practices on the limited focus of one or more cases without accompanying substantive clinical research is a dangerous course.
In written evidence to the NHS Litigation Reform Inquiry, Hempsons Solicitors (2021: 5) discussed clinical lesson learning from litigation and the holding back of spinal and epidural anaesthesia practice:
‘This was largely due to the adverse impact of a generation attempting to learn the lessons of litigation when our cases are best seen as anecdotal illustrations of danger, rather than presenting a template for safe practice based on the sort of evidence that medicine now demands.’
Vindication
Some patients will want their day in court to put their point over and to establish the truth. They will want to find out what really happened and to obtain just compensation.
Attribution of blame, fault, and professional accountability
I would argue that attributing fault, and blame, can be a good thing. It should be seen as an essential part of professional accountability. It is important to know when and why the negligence occurred, and who was at fault. It may well be that understaffing caused the negligent nurse or doctor to cut corners, perhaps not ordering the tests that should have been ordered.
In the NHS litigation reform and patient safety literature we often encounter the idea of the system being at fault and not necessarily the individual. In law, systems can be at fault and not always individuals, there is a concept of systems negligence. The hospital trust would be liable directly in this type of case.
I would argue that nurses and doctors have a professional responsibility to accept the consequences of their own negligence and to reflect on this. This is the hallmark of being a professional: we have a responsibility for our own errors and should learn from them – not batting everything back to our employers and always blaming the system.
Lord Sumption, Former Justice of the Supreme Court, in an address to the Personal Injuries Bar Association, talked about our tort compensation system, expressing some controversial views. His address is well worth reading in full for his insights and analysis. He gives reasons why he believes fault will survive as the essential criterion for compensation:
‘The third and most significant reason it will survive is that it responds to widespread public notions about personal responsibility and the proper function of law. I do not myself share these notions, but I am in a minority on this.’
Do not forget the context
When we consider the nature of our tort compensation system for clinical negligence it is also necessary to reflect on the types of cases it deals with. The errors made by nurses and doctors can have catastrophic and deadly consequences for patients. We have seen recent maternity inquiry reports with shocking failures identified. Never Events continue to plague the NHS and show no signs of significantly abating.
The Care Quality Commission (2022) points out that most patients receive good care when they can access it. Some patients, however, do not receive good care. The law is there for patients to access to obtain compensation for negligent harm, to resolve disputes, not to cure the ills of the NHS patient safety system.
In discussing NHS litigation reform, we need to go back to basics. To not focus too much on the economic arguments but to ask basic questions such as: what should be the proper aims of our tort, civil justice compensation system for clinical negligence? What do we want it to achieve and why?