The National Audit Office's announcement that £4.5bn of the NHS's £40bn allocation has been set aside to meet clinical negligence claims has caused consternation among commentators.
The cost of an estimated 850,000 clinical negligence claims has grown from £50m to £4.4bn per year in the past five years. Last year's increase was £500,000, with the warning that if the NHS had to pay the full bill, the total could double. Putting this money aside will drain the NHS of 10 per cent of its annual health care budget, the equivalent of 15 new hospitals.
Claims take an average of five years to settle, and in 40 per cent of cases the lawyers pocket more than the victims. In turn, the value of payouts has risen 60 per cent. But it would be unfair to brand the legal profession as the main culprits, and the NHS might need to look closer to home if it is to reduce the number and cost of claims.
There are practical reasons why clinical negligence costs have increased. The courts' 1998 decision to award higher damages after a change in the basis of calculation recognised that damages awarded were insufficient to provide adequate funds to cover what was intended.
There has also been a rise in the willingness to question the infallibility of the medical profession following the highly-publicised Harold Shipman and Bristol heart transplant cases, undoubtedly reinforced by the scathing attack by the Lord Chief Justice, Lord Woolf, who argued: “It's clear to the courts that the hospitals and medical profession cannot be relied upon to resolve complaints justly. The over-deferential approach, which is captured in the phrase 'doctor knows best', no longer applies.”
Procedural reforms intend to ensure that patients set out their allegations clearly, and as soon as possible. In turn, the doctors should respond as fully as possible, coupled with the release of relevant documents and information.
There have also been measures to increase doctors' accountability. These include the British Medical Association's decision to introduce smart cards detailing doctors' career history and disciplinary or criminal records, the General Medical Council (GMC) publishing doctors' credentials on its website, and the proposal by Health Secretary Alan Milburn to introduce mortality-rate league tables. The combined effect is to increase awareness of entitlement to sue, and a 300 per cent rise in complaints to the GMC, to 5,000 per year.
But just as important as the pursuit for damages is the search for an explanation and apology. There is no doubt that patients are finding it increasingly difficult to obtain an explanation of what went wrong. Often the suspicion is that if a doctor is aware that a patient is disappointed, albeit rightly or wrongly, the culture in the medical profession still prevails to keep quiet and plead, to use an Americanism, the Fifth Amendment. The outcome is that the patient, exhausted by the conventional NHS complaint route and its inherent failure to provide an explanation, much less an admission or apology, is driven to the courts.
This is being recognised by the Government with the introduction of no-fault compensation, a sliding scale of compensation that can be agreed more openly and more quickly with the use of mediation, and the National Patient Safety Agency to log medical errors and anticipate failings.
But what these measures cannot do is deal with the reluctance of some medical practitioners to acknowledge when things have gone wrong and to explain why. Even under a no-fault/no-liability scheme, there will need to be provision for an operation that was clearly a risk and had an unsuccessful outcome.
Everyone accepts that the majority of the medical profession intend to do the best for their patient. Lawyers have the same duty. If it becomes apparent to a lawyer that there has been a problem, then their duty to their client is no less than that of a doctor to their patient.
What the medical profession, as much as the legal profession, needs to consider is whether the situation and solution are of its own making. It is not greed on the part of lawyers that is behind the escalation of claims. What might be more to blame is a failure to address the lack of communication between doctors and their patients.