When the general media reports on patients receiving compensation awards for clinical negligence in the NHS, the banner headline can often read something like: ‘Patient wins compensation’. Behind these headlines lies an interesting perception, and perhaps even a true one. We take part in a contest, for want of a better word, when we try to obtain compensation in the courts. Court proceedings take place in an adversarial setting and the burden of proof is on the claimant to prove their case, on the balance of probabilities. The defendant hospital or clinician defends the legal action. In a way, using common sense language and taking account of the nature of adversarial court proceedings, the patient has indeed ‘won’.
A more rounded view is that the patient has not won anything; they are receiving just compensation for harm caused by the negligence of those who were meant to care for them. They have a moral and legal right to sue for being harmed and are being compensated for such.
As Cribb et al (2022) argued, we also need to discuss further what we mean by ‘justice’ as there are many different conceptions. We cannot glibly say something is unjust:
‘We contend that part of the ongoing muddle about safety cultures stems from this lack of focused attention on the nature and implications of justice in the field of patient safety.’
It is important to move away from the headlines when patient compensation for clinical negligence is discussed. We need to look further into the detail of what happened in the case and the precise outcome. The case may well have been settled through mediation, for example. Most cases do not proceed to court:
‘In 2021/22, 77% of claims were settled without litigation, the highest ever volume achieved, reflecting our ambitions to keep patients and healthcare staff out of litigation wherever possible. The percentage of claims that have litigated continues to reduce, down from 26% (2020/21) to 23% (2021/22).’
For clinical claims only, NHS Resolution (2022) reported the number of litigated claims that had resolved without an award of damages increased from 19% (2020/21) to 25% (2021/22).
The person in the street
Whatever the outcome of a case, whether the patient ‘wins’ or ‘loses’, the effect on them of starting the long and arduous clinical negligence claims process should not be underestimated. The emotional, physical, and financial impact on patients and their families can be devastating. It is not a pleasant or easy task for a patient to contemplate suing those who treated them.
In thinking about tort and clinical negligence reform it helps in developing perspectives to think about these issues from a general, person in the street position, without specialised knowledge. This helps with objectivity. Injured patients need significant help when bringing compensation claims – they have not the knowledge, experience, or the resources of those that they are seeking redress from. It is not an even playing field and they are the weaker party. The ordinary person in the street would not immediately think of litigation when their treatment goes wrong. Not everybody recognises that untoward events can have legal consequences. Starting clinical negligence litigation will be seen by most people as utterly alien and frightening. They are entering into a new, formal world of lawyers, courts, wigs and gowns. They are also suing those who were taking care of them, and they most probably have developed established relationships of trust with those people. We need to factor all this in when talking about tort and clinical negligence reform and it cannot be discounted.
Corrective and distributive justice
In teaching the law of tort, we begin with the concepts of corrective and distributive justice. Translating this to reform, we would consider policy being led by the perspective of compensating the individual patient or by looking at the impact on society as a whole of the claim. There can be a mixture of both approaches. Court decisions have consequences – do we think about these narrowly or widely? Horsey and Rackley (2021:10) stated that the typical conception of corrective justice:
‘… is built on two key elements – fault and causation. A defendant is liable to make good a claimant's losses because they (a) factually caused the claimant to suffer those losses and (b) were to blame (at fault) in so acting.’
Contrast this with the ‘distributive justice’ approach:
‘The mismatch between demands and resources in healthcare leads to the problem of ‘distributive justice,’ or how to allocate limited healthcare resources fairly within society.’
National Institute for Health and Care Excellence, 2008:9
Applying this to the tort and clinical negligence reform debate and the idea of the patient being the weaker party, a corrective justice approach to reform thinking would then seem more appropriate.
It is also important to think about the stakeholder camps of opinion. This corrective and/or distributive justice type thinking can help frame perspectives on these.
Two camps
When we talk about reform in this area, there are essentially two camps of opinion. First, the economic, which maintains that the costs of clinical negligence are spiralling out of control and are taking much needed financial resources away from NHS frontline care – that reform is needed to help correct this.
In the other camp, we have the view that patients' rights to access justice for harm caused by negligence should never be compromised. Clinical negligence cases involving small or high legal claims can be just as complicated as each other. If we improve NHS patient safety, then arguably there will be fewer legal claims.
Both camps' views were well-articulated in the recent House of Commons select committee NHS Litigation Reform Inquiry, chaired by Jeremy Hunt (Health and Social Care Committee, 2022). Illustrative of the economic camp, broadly speaking, are the remarks of Dr Matthew Lee, Chief Executive of the Medical Defence Union (MDU), on the publication of the Inquiry's report:
‘The cost of clinical negligence is unsustainable. At a time when the NHS needs those funds more than ever to recover from the Covid-19 pandemic, reform can no longer be delayed.’
Illustrative of the patient rights camp is Action against Medical Accidents (AvMA) (2021), the charity for patient safety and justice. It has argued that clinical negligence cases are avoidable, that the same type of errors are often repeated, that patient safety incidents could be better investigated, fault determined and patients compensated fairly without resorting to litigation. An NHS ‘deny and defend’ culture is not entirely dead:
‘… the simple fact is that by definition, clinical negligence cases are avoidable and cause immeasurable human agony. Yet we continue to see similar mistakes being repeated; expenditure on the NHS that is lower than what many countries spend on health; and under staffing of NHS services.’
Both camps raise good points and the difficulty is in drawing an appropriate balance between them.
The odds are stacked against patients
I was inspired by a blog post from AvMA's Chief Executive, Paul Whiteing, on ‘What price justice?’. There is a discussion of legal procedural proposals for claims valued at £25 000 or less, which will adversely impact on patients' clinical negligence compensation awards (Whiteing, 2023). He highlights the hurdles patients face in bringing legal claims for clinical negligence, discussing the concept of a compensation culture and the effect on public resources:
‘The evidence for such a culture is limited if non-existent. And when you engage with the issue for the briefest of moments and think about what is involved in seeking redress in the case of clinical negligence, you quickly see that the odds are stacked against patients from the very first moment they raise a complaint or question their treatment.’
His words are powerful ones, compounded by the extensive experience that AvMA has had in dealing with clinical negligence claims over several years. Factors that stack up against the injured patient can include the complexity of the complaints system and the myriad number of health regulatory governance systems. Patients can and do get lost in these when trying to resolve disputes. Also, they have a defensive NHS culture to navigate:
‘We heard about the failure of the system to acknowledge when things go wrong for fear of blame and litigation. There is an institutional and professional resistance to changing practice even in the face of mounting safety concerns. There can be a culture of dismissive and arrogant attitudes that only serve to intimidate and confuse.’
These strong words from Cumberlege address commonly recited themes that I have seen in many reports over the years.
Conclusion
A patient who is contemplating suing for clinical negligence faces major hurdles. They must first recognise that their problem has legal implications. Many potential claims are never raised because patients don't see this link between what they have suffered and what they can do about it.
In discussing compensation awards for patients it is important to look at the surrounding context of the award – they are being awarded compensation for harm suffered. They are being put back, as far as money can do this, in the position that they would have been in had the harm not occurred.
It is also important to view tort, clinical negligence reform proposals from the perspective of the ordinary person in the street with no detailed knowledge of the area of patient safety and the legal system. This provides a realistic, grounded, objective view of the process of suing for clinical negligence.
I would also argue that, in discussing such reform, it is important to engage in both corrective and distributive justice thinking to help view matters. I find the corrective justice approach more persuasive in viewing these issues. To my mind, the overwhelming factor in the debate about reform in this area is the significant hurdles faced by patients in resolving disputes about health care in the NHS. They are the much weaker party and need significant help.