The future of clinical negligence litigation?

Short abstract

The UK's proposed reforms of claims for clinical injury risk fuelling a compensation culture

About 7500 clinical negligence claims are brought each year in England.¹ The current system has been criticised by some as complex, inequitable, and expensive in terms of time and legal fee. However, the cost of negligence claims in 2001-2 was £446m,² less than 1% of the budget for the NHS. Last year, the chief medical officer published a consultation document, Making Amends, which set out proposals for a NHS redress scheme that would provide adjudication for certain clinical negligence claims without the need for legal proceedings.² It draws on experience in the United States, New Zealand, France, and Scandinavia, which have similar problems. So how will the proposals work, and what will they mean for the NHS?

What is the redress scheme?

The proposed NHS redress scheme will provide an administrative rather than a judicial route for claims up to £30 000 (€43 640, $54 420) and claims arising from severe neurological impairment related to birth (box). Initially, these schemes would apply only to the hospital sector but would eventually be extended to primary care.

The redress scheme proposes that hospitals investigate all adverse events, not only in response to a complaint or claim by the patient. Making Amends predicts about 850 000 adverse events a year, many more than the 33 000 complaints concerning hospital care or the 6797 new clinical claims reported to the NHS Litigation Authority in 2002-3. Although prompt investigation of adverse events that lead to serious injury is a sound risk management measure,³ investigating the larger number of adverse events that cause only minor harm will greatly increase the workload.

Figure 1.

Reforms could result in more cases of medical negligence coming to court

Credit: MEPL

Proposals for NHS redress scheme²

• To provide investigations and remedial treatment when clinical injury arises during hospital care plus financial compensation in some cases

• Patients with claims under £30 000 would be eligible if their injury had been caused by serious shortcomings in NHS care

• People with severe, birth related, neurological impairment (including cerebral palsy) that was evident within eight years of birth would be eligible for compensation without proving fault

When an investigation shows that something has gone wrong, clinicians will have to disclose this to the patient or family. This will be part of a new statutory duty of candour (to support the General Medical Council's code of practice). Although candour may disarm some potential claimants, others may construe the admission as an invitation to pursue a claim.

The next step for people who decide to pursue a smaller claim would be for the hospital to develop and deliver a package of remedial care. However, since care is in theory already provided to people who need it, it is not clear what this provision would add unless it permits queue jumping or treatment that would not normally be available under the NHS.

Compensation for smaller claims

An expert panel will determine eligibility for compensation under the final component of the redress package for smaller claims. This is not a “no fault” scheme, and compensation will depend on some determination of fault. Patients will be eligible for payment for “serious shortcomings” in NHS care if the harm could have been avoided and if the adverse outcome was not the result of the natural progression of the illness. It is not clear whether “serious shortcomings in NHS care” will be a softer test than the existing test of negligence but, if it is softer, the success rate for claimants could rise.

The compensation element of the proposed scheme for smaller claims is modelled on the “Resolve” scheme, which was piloted by the NHS Litigation Authority for six months beginning in January 2002. Claims valued at less than £15 000 were referred to the authority for determination of liability by a single expert. There were no defence legal costs, and claimants' lawyers' fees were capped at £1500. Additional fees were paid to the clinical expert and the scheme managers. More than 200 cases were enrolled. Involvement of clinicians implicated in the event was limited to the statement they normally make to their hospital when a claim arises.

Although such a scheme undoubtedly reduces the defence costs incurred in processing compensation payments, almost all of the claims made under the pilot would not have been made under the conventional legal system.⁴ By removing the risk that the loser may ultimately have to pay the winner's legal costs, the proposed scheme removes any deterrent to borderline or frivolous claims. Coupled with the duty of candour and the publicity that would no doubt attend a national scheme, this could boost the compensation culture that, up to now, it has been public policy to prevent.

On the other hand, Making Amends will do little to tackle the problem of claims that are settled for relatively small amounts after years of accruing disproportionately large legal bills.⁵ The delay is sometimes because claims are initially inflated by claimants or their lawyers and take time to be brought down to earth by the defence. One solution might be to cap claimants' costs at, say, 10% of the compensation recovered unless a good reason was shown for a higher amount.

What sort of claims will be covered?

The table shows some of the types of case that would be eligible for compensation under the scheme. The sample is drawn from a cohort of 222 clinical negligence claims arising from hospital care that were closed between 1 January and 30 June 2003 by my firm, which defends clinical negligence claims arising from several NHS hospitals in London and the south east England. In the year to 30 November 2003, the firm took on the defence of 347 clinical negligence cases.

Table 1.

Injuries that might qualify for payment under the NHS redress scheme for smaller claims

Type of claim	No of cases
Unintended damage during surgery	35
Procedure not properly carried out	19
Unnecessary operation	10
Infection	12
Drug error	9
Retained objects	6
Anaesthetic	7
Inadequate consent	2
Equipment failure	1
Failure to monitor	1
Total	102

The remaining 122 cases in our sample comprised 38 obstetric claims (of which 29 concerned severe birth related neurological impairment), seven others, and 77 claims based on delays in diagnosis that would be excluded from the redress scheme because the injuries resulted from the natural progression of the illness. Making Amends does not include harm resulting from delayed diagnosis in its definition of events eligible for compensation, and the omission of such injures from the scheme seems unfair, especially if it is to be extended to primary care, where 57% of all claims concern delays in diagnosis.²

Claims for severe, birth related, neurological impairment

In addition to the scheme for smaller claims, Making Amends proposes the introduction of a separate scheme for compensating those who suffer severe, birth related, neurological impairment, including cerebral palsy. Claimants would not have to prove negligence or any other degree of fault to qualify for payment, but the requirement to prove that the injury was birth related could mean that many of the arguments about causation that currently occur in obstetric litigation would continue. Successful claimants could expect to receive up to £50 000 as an initial lump sum for pain and suffering, up to £50 000 as a lump sum for home adaptations, and up to £100 000 a year for additional care that the NHS may not be able to provide.

Obstetric litigation accounts for about 50% by value of all clinical negligence cases reported to the clinical negligence scheme for trusts,⁶ and these claims have been the cause of growing disquiet for many years.⁷ The incidence of cerebral palsy, the most common type of birth related neurological impairment to figure in the litigation, has remained fairly constant at 2-3/1000 births, despite improving standards of perinatal care. Estimates of the proportion of cerebral palsy in term babies that is birth related vary from 36% to 10%.⁸,⁹ The proportion of term births in which birth asphyxia causes cerebral palsy is 1 in about 3600 (although the Swedish study would put the figure nearer to 1 in 1200).^8-10,¹¹ The proportion that could have been prevented by non-negligent care will be smaller still.

The rarity of birth related cerebral palsy makes many cases difficult to prevent by any reasonably sustainable level of vigilance during maternity care. There may be a case, therefore, for a statutory reform of the law of negligence to give clinicians who attend women in childbirth the same protection from litigation as rescuers in the fire or police service.¹² This would free clinicians from legal liability for failing to prevent neurological impairment caused by a disease process and limit their liability in negligence to any new dangers that they introduce. It seems appropriate to review the position alongside the proposals for a no fault scheme.

Increased fairness?

Currently, judicial decisions have inflated awards to the point where amounts over £3 million are not uncommon for the minority of people with cerebral palsy who can prove fault. Such awards seem excessive both by absolute standards and by comparison with losers in the litigation lottery, who get nothing. It would be fairer if the huge sums involved were distributed more evenly, but will the proposals in Making Amends achieve this?

Unfortunately, it seems unlikely. As with the scheme for claims under £30 000, the scheme's promise of possible compensation for no outlay by the claimant and at no risk is likely to encourage more claimants rather than reduce them. People who discover that they have a good claim in negligence when they apply to the scheme are likely to switch to a negligence based claim to get the higher levels of compensation available from the courts. The result may be that the number of claims may rise and the scheme will only add a new class of beneficiary. The size of the new class would depend partly on the extent to which low birthweight babies are included and the rigour with which the requirement for the injury to be birth related is applied. Merely moving the boundary between winners and losers would not achieve greater fairness when other equally deserving groups, such as people with Down's syndrome or non-birth related cerebral palsy, are excluded.

What next?

In conclusion, further proposals are required to limit the cost of processing inflated claims and to consider whether clinicians should be given some protection from litigation alleging a failure to prevent birth related impairment. As it stands, Making Amends proposes to make it easier to pursue small claims and birth related claims, without necessarily reducing the number of claims processed through the conventional legal system and perhaps encouraging even more of them. The task of dealing with the greater number of inquiries into their practice would inevitably create an added burden for clinicians and hospital managers.

Of course, there is no reason why society should not deploy more of the resources available for health care to compensate people with small claims or birth related neurological impairment. It remains to be seen, however, whether the chief medical officer's thoughtful and comprehensive assessment of clinical negligence litigation will persuade Treasury mandarins to meet the cost of the proposed redress scheme.

Summary points

The government is proposing to reform procedures for compensating for clinical injury

The reforms will greatly increase the number of inquiries into clinical practice

The number of litigation claims would also be likely to increase

The scheme excludes injuries due to delay in diagnosis

It will not reduce the excessive legal costs of processing inflated claims that are eventually settled for small amounts