Two key areas that have been under consideration are a fast-track scheme dealing with low value clinical negligence claims, and a system of no-fault compensation.
These are claims worth £15,000 or less. Figures vary, but they probably account for 20-25 per cent of all claims against the NHS. Some are relatively straightforward and may start out as NHS complaints, while others are complex and necessitate a considerable amount of investigation and input from independent medical experts.
Due to the anomalies of our system of compensation, so called low-value clinical negligence claims can be anything from a misdiagnosed fracture of the wrist to the death of a baby. The fractured wrist could result in a couple of months of additional pain and suffering and a 5 per cent increase in the risk of arthritis, or it could necessitate the fusion of the wrist bone and the loss of a career for a police or army officer. The death of a baby might attract statutory bereavement and a couple of thousand pounds for the normal pain and suffering associated with the death of a child, or could cause such catastrophic psychological illness that both parents are affected for many years.
This wide spectrum and lack of consensus about what could be dealt with in a fast-track scheme prevented such a scheme being introduced. But in response to the Government's announcement, one of the after the event insurers for clinical negligence claims, Litigation Protection, following consultation with a number of stakeholders, devised and introduced a fast-track pilot scheme that began in February.
The purpose of the pilot was to provide an inexpensive, quick resolution to straightforward, small-value clinical negligence claims. There were a number of excluded categories, including claims in excess of £15,000, complex cases and child cases. Less obvious exclusions were dental treatment and claims involving pharmaceutical products.
The scheme was administered by Litigation Protection, under the name Resolve. Key to the pilot was the concept of the virtuous circle, which meant that if all small-value claims were handled within a certain process, then information about those claims could be collected centrally and fed back to the NHS to enable risk prevention measures to be targeted to specific problem areas identified by the pilot.
The procedure was designed to take no longer than six months, with very strict time limits for obtaining copy medical records, joint instructions of experts and a review of the case following receipt of expert evidence.
Costs were fixed at £1,500 and solicitors were not paid for turndown or unsuccessful cases. Disbursements were paid for by the National Health Service Litigation Authority or Resolve.
A panel of specialist solicitors, who had participated in the consultation, was set up to run the pilot. The pilot came to an end in July and is presently being evaluated by Professor J Posnett and a team at York University.
Advantages of the fast-track scheme
•The system is quicker for patients and doctors alike.
•It is less emotionally fraught and stressful.
•Cases were run through the pilot which would otherwise not have been taken on.
•There were fewer NHS complaints as these were siphoned off to Resolve for rapid resolution.
•Administration of the scheme was excellent.
•The independent administration helped smooth the process.
Disadvantages of the fast-track scheme
•It was difficult to assess cases based on a questionnaire.
•50 per cent of cases in the pilot were turned down after investigation.
•Investigation was very limited.
•There were too few medical experts on the panel.
•The scheme was just about money – claimants could not get an explanation or apology.
•It was a “no frills, cheap service”.
•Some of the time limits were too tight.
•There were no penalties for delay on the time limits.
•There were problems with low value but complex claims.
•There was no real opportunity to learn to manage risks better.
•Claimant solicitors were expected to do too much work.
•There were too many exclusions – dental treatment, for example.
•Lack of marketing meant the take-up was slow.
•The high number of turndown, slippage in timetable and extra work, and low level of fixed costs made it very difficult for claimant solicitors to manage these cases profitably.
Several changes could be made to improve the system:
•Cost penalties for delays to the timetable.
•More medical experts on the panel.
•An independent adjudicator to decide settlement value.
•Higher fixed costs.
The pilot has demonstrated that a fast-track scheme, efficiently administered – preferably by an independent third party – can deal with some clinical negligence cases. It is good for straightforward low-value cases, but it is not suitable for high-value or complex claims.
When the Government first announced the reforms, no-fault compensation seemed to be top of the list. It was to be a “non adversarial dispute resolution with a tariff that would pay fixed amounts for different injuries regardless of blame”.
Advantages of no-fault compensation
•It is less expensive.
•Less time is taken to resolve claims.
•Doctors' reputations would not be tarnished.
•There is a culture of openness.
Disadvantages of no-fault compensation
Following the review committee's consultation, a number of serious disadvantages have been highlighted:
•Similar schemes in other countries have failed and have ended up costing a lot more than our existing system.
•Causation still has to be proven and this is often more difficult and costly to prove than negligence.
•There would still be disputes about the level of compensation. A similar scheme exists for the victims of criminal injuries and there are numerous appeals about the financial awards in those cases.
•At the moment, trusts and individual doctors are insured, but under a no-fault compensation scheme it is not clear who will pay – insurers, tax payers or the NHS.
•A no-fault culture could lead to less clinical accountability.
Arguably, the debate on no-fault compensation has been extremely useful in highlighting these very real disadvantages and it is, therefore, unlikely to form the main plank of the Government's reforms and may not be introduced at all.
At the moment, poorly handled complaints lead to litigation. A better complaints system is essential to further reduce litigation.
Other reforms should include staged costs and penalties for delay to encourage early settlement and annual payments of lump sum awards, which would overnight reduce millions of pounds of outstanding compensation. Arguably, the latter is the easiest solution for the Government – it is quick, effective and has widespread support.
Mediation and alternative dispute resolution are on the increase, and perhaps clinical negligence is moving into a special area of its own. Like family law, where the needs of the most vulnerable are put first, others involved, such as doctors and lawyers, will come second.
Most specialists in this field have already begun to embrace change, and do not litigate unless it is absolutely necessary. They already negotiate a package on behalf of their clients that will include monetary compensation, but also an apology, explanation and retraining of individuals to lessen the chance of recurrence.
Rosamund Rhodes-Kemp is a partner at Russell Jones & Walker