Insult to injury?
17 June 2002
Last summer, following the release of some figures from the National Audit Office (NAO) and a flurry of adverse comments about the growing cost of claims against the NHS, the Government announced an enquiry under the chief medical officer, Professor Liam Donaldson, to investigate ways to reduce the number and cost of claims against the NHS.
The Association of Personal Injury Lawyers (Apil) acknowledges that every pound spent on a claim is a pound not spent on medical care. However, the figures causing alarm from the NAO were misinterpreted and did not give the whole picture. The NAO calculated the amount reserved as provisions, assuming that every claim investigated is won by the claimant and paid to its full value. The reality is rather different, as most cases do not get off the ground, many are lost and very few are paid to their full value, and even then are not paid for years to come.
This is illustrated by the figures for 2000, in which £373m was spent on claims compared with the provision of £3.9bn.
In addition, there have been a number of changes in the practice of clinical negligence litigation that have yet to be felt on the overall cost of claims - the introduction of the Civil Procedure Rules, pre-action protocols and the fact that legal aid cases are being confined to members of the clinical negligence panel.
Apil is concerned with finding a constructive way forward to deal with the Government's concerns. It has put in a detailed submission to the enquiry team following a consultation with its members and it maintains that there are many claims against the NHS because the NHS is an underfunded and understaffed organisation with poor risk management systems.
Clearly, the Government agrees that the NHS has a funding and staff crisis or it would not have announced in the recent budget the largest increase in funds ever seen for the health service.
The solution to the problem is not for the rights of patients to bring claims to be removed or for damages to be capped and the assessment of damages taken away from the courts. Just because the Government chooses to finance healthcare through the NHS rather than, for example, through an insurance-based scheme in the private sector does not justify removing legal claims from the normal tort system. The system for dealing with claims against the NHS should be no different from that of claims against other Government-financed services.
Another idea is for claimants to be denied compensation to purchase private treatment outside the NHS. However, the care commonly needed by victims of clinical accidents, such as domestic day care or intensive rehabilitation, is frequently only available in the private sector. Where there is a choice of NHS or private care, victims may understandably be reluctant to return to the NHS if previous treatment on the NHS put them in the present position for which they now need care. To deny them this choice through limiting the basis of the award would be unjust and to punish the victims of NHS accidents with capped or tariff damages because of a badly managed and financed system would truly add insult to injury.
Apil has put forward a number of practical suggestions to reduce the cost of claims:
Apil supports the idea of reversing the burden of proof in clinical negligence cases. The time and money spent proving claims would be slashed if the onus was on the hospital or doctor to show that there was no liability.
It supports a small claims procedure, combining complaints with claims under £10,000.
It supports alternative dispute resolution - usually in the form of mediation - for medical claims. This is particularly important in this context, because many injured claimants and bereaved families are interested in preventing further mistakes happening as well as receiving an appropriate apology.
The new court procedures and protocols should be used properly and contain sanctions to streamline the management of a case and to reduce costs.
Apil supports moves to provide bottom-up-structured settlements with periodical payments, reflecting accurately the current cost of care and treatment, so that the patient can afford to purchase the treatment they need. A new regime for periodical payments is presently undergoing consultation by the Lord Chancellor's Department.
Perhaps most importantly, Apil wants the NHS to develop modern methods of risk management. Databases of claims should be shared between trusts so that they can establish patterns of clinical risks and take steps to improve them.
Risk management is something that solicitors have had to grapple with. Many have introduced the Lexcel risk management system into their practices. It clearly makes sense to analyse where claims come from, the riskier areas of practice and to introduce measures to minimise the chance of claims coming into being, beginning with the most expensive claims.
In the medical world, this would mean managing the risk of obstetric cases better. Babies damaged at birth receive the very largest awards. Things can go badly wrong in the middle of the night when the consultant is at home and the patient is managed by an overworked and tired houseman and midwife and the paediatrician is nowhere to be found.
There were signs recently that the team of civil servants assisting the review had come round to the view that the cause of the problem was primarily the large number of adverse events within the NHS. Those at Apil hope that the chief medical officer will now propose measures that will reduce those events rather than attempt to take away the rights of patients.
Patrick Allen is senior partner of Hodge Jones & Allen, Apil president, a member of the Action for Victims of Medical Accidents (AVMA) panel and a senior fellow of the College of Personal Injury Law (CPIL)