Daniel Sokol: Are legal fees killing the NHS?

The debate on NHS compensation is plagued by misconceptions, argues Daniel Sokol

NHS faces huge clinical negligence legal fees bill” was a headline this week. According to the BBC, the NHS receives 10 000 new claims for compensation every year. The total cost of outstanding compensation claims is estimated at £83 billion. In contrast, the total budget of NHS England in 2018-2019 was £129 billion.

The chief executive of the Medical Defence Union, Christine Tomkins, observed that this is “money that should be going to healthcare but instead is going to compensation claims—which is impairing all of our access to healthcare.”

Niall Dickson, chief executive of the NHS Confederation, wrote in a tweet “punitive damages risk undermining services for the mass of patients.”

I am a clinical negligence barrister who represents both patients and the NHS. This means that I sue clinicians and defend them. In my view, the debate on NHS compensation is plagued by misconceptions.

First, compensation is not punitive. It is not a “good deal” for the patient who has been harmed. The worst imaginable injury—total tetraplegia with constant pain, awareness but no ability to communicate, no speech, no sight, no hearing, needing help with all areas of life—will attract an award for pain, suffering, and loss of amenity of between £304 630 to £379 100. Few of us would contemplate trading our health for these sums.

Often the largest part of compensation claims is for the cost of care. A tetraplegic patient may need 24 hour care at home with specialist nurses. If the patient has a long life expectancy, this alone could amount to millions of pounds. If the patient is unable to work, then he or she is compensated for their loss of earnings and pension. They may need to spend large amounts to adapt their home or move to more suitable accommodation. Next time you read a headline about a patient receiving tens of millions of pounds in compensation, remember that a large chunk of that is likely to be the cost of nursing care for life.

The aim of compensation is simply to put the injured person back in the position he or she would have been in had the wrong never happened. This is called the “full compensation” principle. So if a patient lived at home before sustaining a horrific injury at the hands of the NHS, then they should be allowed to be cared for at home even if that is more expensive than care in a residential home.

Unless you believe a patient who is negligently harmed by the NHS is not entitled to full compensation, there is no need for an overhaul of the compensation system.

Second, clinical negligence claims are not made frivolously. Most claimant lawyers work on a “no win no fee” basis, which means they only get paid if they win. It is not in their interests to bring weak cases. The decision to sue is based on the evidence of expert witnesses, who are themselves doctors, surgeons, nurses, dentists, or whatever clinical specialty is relevant. Lawyers are easy targets but they are not the problem. Incidentally, the NHS rates for lawyers are so unattractive that many able lawyers are put off from conducting NHS work.

The most effective way to cut the cost of clinical negligence claims is to ensure that clinicians employed by the NHS are well trained, diligent, and knowledgeable. This will avoid a great many blunders. So too will ensuring that clinicians work in environments that are well resourced, supportive, and which mitigate risks to patient safety, such as staff shortages.

When mistakes do happen, NHS trusts should adopt an open, transparent, and compassionate stance.  Some patients sue because they want to know what really happened and they feel the hospital is withholding the truth.

When claims are made, their merits should be evaluated promptly and realistic offers of settlement made early before legal costs build up. Too often have I seen the NHS defend weak cases only to settle shortly before trial when legal costs are high.

Finally, the NHS should learn from its mistakes and implement changes to reduce the likelihood of recurrence. 

Cutting the cost of clinical negligence claims is a laudable goal, but it should not come at the cost of fairness to those harmed by negligence. Identifying and acting upon the causes of negligence, and ensuring that lessons are learnt, are more effective and ethical ways of reducing the cost of compensation.

Daniel Sokol is a barrister and medical ethicist in London. He is the author of Tough Choices: Stories from the Front Line of Medical Ethics. Twitter @danielsokol9

Competing interests: None declared.