Are safety measures really the answer to spiralling clinical negligence costs?

mike_devlinAviation, rail, and oil and gas industries pride themselves, for good reason, on their safety records and associated culture. And a logical extension of the success of those industries is to apply similar approaches to medicine, with the aim of reducing risk. Instinctively, that makes sense—make medicine safer and there will be fewer errors, saving money by getting it right first time, and reducing litigation.

Jeremy Hunt, the secretary of state for health, speaking on a visit to the Virginia Mason Hospital in Seattle, sought to make the link explicit. He said that controlling safety was an essential part of controlling budgets. But is the evidence that clinical safety and litigation are linked particularly persuasive—or is there more to it?

How many people would easily recognise an organisation with a more positive patient safety culture than their own, and how easily could it be transferred to their own place of work? It’s certainly something that I have thought about over the past 20 years.

In the early 1990s, as an army medical officer, I had a six month attachment to an RAF unit. One thing that struck me was that serving personnel identified strongly with the same safety culture that existed (and exists) in the civil aviation sector. The hierarchical structure could easily have inhibited the reporting of potential problems, but organisational culture ensured that this was not the case. The culture existed because everyone believed in it.

This type of positive organisational culture, where patient safety is achieved through continuous improvement, is absolutely the right thing for the NHS and its staff to strive for. Clinicians should seek to put safety at the centre of what they do for its own sake, rather than because they think it’s the answer to the litigation crisis. Putting this sentiment as pithily as possible, the Berwick Report (2013) stated:

The most important single change in the NHS in response to this report would be for it to become, more than ever before, a system devoted to continual learning and improvement of patient care, top to bottom and end to end.

However, it doesn’t necessarily follow that such a culture will result in fewer claims. Having reviewed over 40 papers published in peer reviewed journals, there is little evidence demonstrating a clear link between patient safety improvement and litigation, and the few papers that have suggested a link are from US studies of obstetrics and anaesthetics.

On the other hand, a UK study published this year by Dr Paul Goldsmith et al examined the question of whether clinical incidents, complaints, and medico-legal claims overlap, using data from a large NHS trust. The authors found that most complaints and claims were unrelated to a clinical error and commented: “Our results suggest that even if we were in a low error system, there would still be considerable complaints and claims.”

On many measures, medicine appears to be getting progressively safer and there is no evidence that doctors are increasingly unfit to practice—GMC figures show the converse is true.

The reality is that while the cost of clinical negligence claims is rising at about 10% a year, the drivers of this inflation are not linked to declining safety standards. The drivers are economic, legal, and to an extent societal—advances in clinical care recalibrate patients’ expectations upwards. As clinical standards rise, the bar against which care is judged also rises.

Last year the NHS Litigation Authority’s total liabilities for clinical negligence claims stood at £28.3 billion—money that won’t be available to treat future NHS patients. At current rates of inflation that figure may double by 2022. Watching from the sidelines is not an option. What is needed is legal reform to ensure that patients injured by negligent treatment can receive fair and proportionate compensation that society will be able to afford in the years ahead. The Medical Defence Union (MDU) has suggested a package of reforms to the way compensation awards are calculated and care to damaged patients is provided, which would see negligently harmed patients cared for and fairly compensated, while diverting significant funding back in to the NHS to improve services for all.

There is evidence, for example from the US, to show that such reforms can address the spiralling cost of claims. It is not a case of choosing between patient safety initiatives and reform of the legal system. Both should happen, for their own reasons, and there is no time to waste.

You can find out more about the MDU’s suggested reforms at

Michael Devlin is head of professional standards and liaison at the Medical Defence Union.

Competing interests: I am an employee of the Medical Defence Union.