Recently the eyewatering cost of clinical negligence claims to the NHS have dominated the headlines—£2.4bn was paid out during 2018/19 alone. To put this into context, £2.4bn equates to the cost of training over 10,000 new doctors. Since 2010/11 NHS spend on clinical negligence has on average increased by 13% every year, and if it continues to rise at the same rate, the NHS could be paying out £4.4bn a year by 2023/24.
Of particular concern, is the fact that legal costs accounted for a quarter of the £2.4bn bill in 2018/19, and in lower value claims it is not unusual to see lawyers’ costs exceed the compensation awarded to claimants.
It is right that we question whether this amount of NHS money should be spent on lawyer fees, and whether the wider cost is sustainable. Patients who are harmed as a result of negligence should receive fair compensation and access to quality legal advice, but a balance must also be struck against society’s ability to pay.
The need for a package of legal reforms to control spiralling costs is becoming ever more pressing. But we also need to get to the heart of the complex and interrelated drivers of higher claims and the associated costs over recent years.
The current context may explain some, but not all of the causes of this crisis. Patient numbers and life expectancy are rising along with our expectations of what modern medicine can deliver. The burdens, costs, and limitations of social care are also inextricably linked to the relentless pressure and workload doctors face.
What is clear is that a range of measures are necessary, and with some urgency.
First and foremost, we need to make continual improvements in patient safety to prevent adverse incidents. We also need in-depth research to get to the bottom of what patients are hoping to achieve through litigation. While some patients or their families may seek financial redress through litigation to support long-term care or loss of earnings, others pursue legal action to obtain an explanation or apology—or to ensure steps have been taken to stop the same thing happening again.
Linked to that, we must take steps to create an open learning culture in healthcare where mistakes can be discussed and learnt from.
Finally, we need legal reform to control the rising costs once a claim has been made. Some reforms—such as the introduction of a fixed recoverable costs scheme—would stop lawyers charging disproportionate fees. Others will help to make the system more predictable, fair and transparent—and this will in turn result in savings. For example, the use of national average weekly earnings to calculate damages awarded, instead of a patient’s weekly earnings—to avoid higher earners receiving more from the NHS in compensation than lower earners, for a similar claim.
Enhancement’s in patient safety, research into patients’ motivations, an open learning culture and legal reform—these are not mutually exclusive activities. I would argue that all of these steps are needed.
The Government recognises there is a problem; it has committed to improving the compensation process for families with babies who have died or have been left with disabilities following clinical negligence, and to publishing a wider strategy on clinical negligence reform. We are still awaiting the detail on this, and in our “Priorities for the New Government paper,” we urge the new government to be both swift and bold if we are going to get close to addressing the issue.
This is without doubt a difficult debate to have, but difficult decisions are made about spending in healthcare every day and unfortunately, we have reached a point where the amount society pays for clinical negligence must be one of them.
Pallavi Bradshaw, Medicolegal Lead at the Medical Protection Society (MPS).
Competing interests: Membership with MPS provides the right to request access to expert advice and support on clinical negligence claims, complaints, GMC investigations, disciplinaries, inquests and criminal charges such as gross negligence manslaughter. Members also have the right to request indemnity for claims arising from professional practice.