Making amends for negligence

That doctors are more likely to be sued for negligence now than they have been in the past is undeniable. In particular, in the 1980s and 1990s the number of claims steadily increased, relative to the number of treatment episodes. The reasons for this are by no means clear but probably include elements of a cultural shift in attitudes to the medical profession and the growth of the legal services “industry.” More contentious, however, is whether this change represents a good or a bad thing, and what if anything needs to be done about it. The chief medical officer's consultation paper, “Making Amends,” starts from a premise that something does need to be done, and it puts forward suggestions for reform, including fast track arrangements for smaller cases, but stopping short of a full no fault scheme for all patients.¹ Two contributors to this issue have reacted to the chief medical officer's document somewhat critically. Brian Capstick maintains that the proposals for reform run the risk of increasing the burden on clinicians and hospital managers because the number of claims will increase and that therefore costs may be prohibitive.² Bertie Leigh in his commentary argues that there is no real crisis in the current system—costs are under control, and claims are dealt with proficiently on the whole.²

The chief medical officer's proposals clearly have some anomalies, and the current, much reformed tort system operates more efficiently than most people think.³ However, this does not take away the case for reform, and there is a risk that the debate over “Making Amends” is being limited by a too narrow perspective on the financial and administrative burden of settling claims against the NHS. Some fundamentals must be kept in view: the chief medical officer estimates that there are 850 000 adverse events related to NHS care annually. Only a tiny percentage involve litigation or compensation payments, yet a sizeable proportion cause harm to patients, resulting in costs borne by patients themselves, families, employers, insurers, social security, and, ironically, the NHS itself. These costs are central when accounting for the full consequences of medical error, and the cost of any compensation system must be set alongside the impact of that system on the total number and cost of adverse events.

A system that generates more claims, and therefore an increased burden on clinicians and managers, is not necessarily a bad system. If the financial responsibility for claims changes the behaviour of providers and makes hospitals safer places for patients, then the overall impact may be a reduction of costs, in the wider sense that includes social harm. Of course, not all adverse events can or should be prevented: medical care has inherent risks, resources are limited, and principles of cost effectiveness should apply here as elsewhere in the NHS. Unfortunately, most NHS hospitals are some distance from having in place comprehensive cost effective mechanisms to increase patients' safety.

“Making Amends” implies two ways in which claims may be encouraged. Firstly, the proposed basic redress scheme will make claiming cheaper and quicker, and more adverse events may consequently result in a claim. Secondly, eligibility for the proposed redress scheme for birth related injuries will be based on a test of causation, not fault, and this should result in more claims being met than at present. Providing that healthcare providers see these claims as generating valuable information and use this as a basis for action to improve patient safety, increased claims will have benefits as well as costs. But two conditions must be met for this to be plausible: the administrative costs of processing claims must be well controlled and some financial responsibility for claims should remain with the healthcare provider. Concerning the first condition, the chief medical officer envisages a streamlined process for dealing with claims under the redress schemes. Concerning the second condition, however, financing the redress schemes has been left open. The NHS litigation authority has been given the central responsibility for collecting contributions from NHS trusts. Whether and how these contributions will be related to the trusts' experience in reducing patient claims remains unclear. This raises complex issues about the relative complexity of trusts' case mix, and the range of variation in contributions that is desirable, but these issues should be part of the debate about principles, not just about implementation. Surely a fair principle is that hospitals with a poor record in patients' safety (relative to what might be expected) should bear a greater share of the compensation costs, by comparison with hospitals that have a good safety record. The challenge for the future is to find ways of harnessing data from the proposed redress schemes to achieve this end.