The Costs of
Clinical Negligence
Last year the headlines were flooded with news on Brexit, the
migration crisis and most notably, the US elections. The ongoing
struggles of the NHS has also emerged as the hot topic of
the day with various charities, organisations and even NHS
employees sharing their opinions on the matter. It comes as no
surprise then that, in the legal world, the spotlight has shifted to
clinical negligence claims brought against the NHS each year.
I would like to take a step back from the
headlines in the media and focus on what
a clinical negligence claim entails from the
perspective of an injured patient and the
changes in the legal framework in which
clinical negligence law now operates. But
first, a bit of history…
Clinical negligence claims, which are known
to be complex and challenging in most
cases, find their roots in tort law (the law of
civil wrongs) which provides legal remedies
to those who have unfairly suffered loss or
harm as a result of negligence. It all started
with the case of Donoghue v Stevenson
(1932) in which a decomposed snail was
found in a bottle of ginger beer: “The
rule that you are to love your neighbour
becomes in law you must not injure your
neighbour”
About 30 years later the case of Bolam v
Friern Hospital Management Committee
(1957) established the test for negligence
(i.e. whether there has been a breach of
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duty of care) in the context of patients
receiving medical treatment. The so-
called Bolam test provides a defence for
medical professionals if they have ‘acted
in accordance with a practice accepted as
proper by a responsible body of medical
opinion’. In other words, they have taken
the same action that their peers would have
taken. The ‘10 per cent rule’ applies here:
if 10 per cent of the doctors in the country
would have taken the same course of action
and that action is logical, then it will not
be negligent. If negligence is established,
the Claimant then has to prove that those
actions (or omissions) caused the injury
on the balance of probabilities. Claimant
lawyers normally instruct medical experts to
advise on this.
To deal with clinical negligence claims,
the government set up the NHS Litigation
Authority (NHSLA) in 1995 to defend
cases. Claims brought against GPs and
private medical professionals on the other
hand are dealt with by medical indemnity
organisations such as the MDU or MPS.
In 2003 the Department of Health published
a paper ‘Making Amends – Clinical
Negligence Reform’ which set out to
prevent clinical negligence by reducing
risks, preventing harm to patients and
promoting best practice. The NHS Redress
Scheme also proposed a more predictable
and affordable system for legal claims.
The review highlighted the lengthy time
it took for cases to conclude and the
significant costs incurred in doing so.
However clinicians also professed to
practising ‘defensive medicine’ and avoiding
certain high risk procedures for fear of being
sued. Whether this can be considered as
acting in the best interests of the patient is
another matter.
On the other hand, one can take the view
that litigation can drive the development
of better practice and hold institutions
accountable for mistakes made. It can also
help to identify systematic failings and lead
to improvements in healthcare.
It all sounds well in theory, but the practice
of litigation is where the problems begin.
The NHSLA has been criticised for denying
liability too readily and driving up significant
legal costs, even where an admission
could be made earlier. A National Audit
Office review in 2003 found that the costs
of bringing a claim exceeded the damages
in the majority of claims valued under
£45,000; 95 per cent of cases were settled
out of court, with only 5 per cent of claims
reaching trial.
The Department of Health has
acknowledged the serious shortcomings
within the NHS. It is thought that this is
down to a lack of funding, a shortage of
doctors, population growth and an ageing
population.
Presently there are many reports in the
press of clinical staff working in less than
ideal conditions due to shortages of staff, no
time for breaks, overuse of locum staff and
a lack of proper training and supervision.
This year A&E departments need at least
8,000 doctors, 50 per cent more than
the number of staff currently employed
to deal with the demands of emergency
admissions.
NHS figures show that between 2005
and 2015 the number of patient Hospital
attendances caused by ‘unintentional cut,
puncture, perforation or haemorrhage
during surgical and medical care’ rose from
2,193 to 6,082. Peter Walsh of charity AvMA
stated that more complex procedures
and a better reporting of incidents may
account for this rise in figures but not
account for figures trebling and suspected
that inadequate staffing and increased
pressure at work were also factors. There
is particularly concern among surgeons
that their training is not as thorough and