Abstract
This article considers different approaches with a view to reducing NHS legal costs and damages for clinical failures on the basis that these are out of control and reducing resources for the treatment of current and future patients.
Keywords
Every year the National Health Service Litigation Authority (NHSLA), now known as NHS Resolution, is paying out huge sums of money in damages, costs and fees in consequence of claims of clinical negligence, and these sums are increasing year on year. Over one-third of the £1.7b paid out annually by the NHS goes on legal costs. This money would be better spent on patient care. What can be done about it?
The legal world
Matters could be made more difficult for claimants. Most claims are either successfully defended or settled by the NHS. Claimants have to rely upon no win, no fee and after the event insurance, or to rely upon private funds, supportive charities, employers and trade unions, crowd funding and personal insurance. Personal injury insurance is readily obtainable at a modest premium as an add-on to motor or house or other insurance and could be made compulsory. The hospitals could be instructed to resist all claims; many claimants lack perseverance and readily give up through fatigue and discouragement. NHS Resolutions could be instructed to settle only as a last resort; though such a policy could be counterproductive in leading to an unnecessary and expensive prolongation of the dispute. As is already happening, hospitals could refuse to allow solicitors to have an office within the hospital, thus removing the temptation for patients to seek legal advice and to be encouraged to litigate.
Litigation could be made as difficult and deterrent as possible. At present the remedy available for the claimant is altogether too adversarial. Every claimant could be required to seek pre-litigation independent legal advice and submit a copy of that advice to the hospital and the court; and the hospital could be required to submit a short explanation of their stance. The no win no fee system, at present virtually the only method open to the ordinary patient litigant, could be prohibited, to protect hospitals against irresponsible speculative claims designed to induce a settlement when the claim lacks merit. All litigants could be required to try to mediate or lose the right to costs, a system which anyway is gradually becoming the norm. All parties could be encouraged to arbitrate and be penalised in costs for any unreasonable refusal to consider arbitration. In 2016–2017 about 37% of the £1.7b paid out by the NHS went on legal fees. Legal fees for the lawyers could be restricted to a maximum percentage of the claim, or the costs, or of any sum eventually awarded. Costs could be even more strictly controlled. Each side could be required to bear their own costs whatever the result. Costs could be limited to a maximum percentage of the damages, or a specific sum, fixed recoverable costs, which are increasingly favoured. Sir Rupert Jackson advocated fixed recoverable costs for cases up to £25,000. Fixed costs are alleged to incentivise settlement. A Working Group of the Department of Health and Social Care, with representatives from the Ministry of Justice and the Civil Justice Council, investigated a costs cap for claims up to £25,000. The majority of respondents did not favour the concept of the costs cap. The matter has been referred to the Civil Justice Council (CJC) for report in autumn 2018. The court fees could be increased even more. Clinical negligence claims could even be prohibited, but the judges would probably refuse to apply such a prohibition as denying the constitutional right of access to justice (R (Unison) v Lord Chancellor [2017] UKSC 51).
Alternatively, the claimant could be state assisted, especially the litigant in person (LIP) and the claimant claiming up to £25,000. The lawyer would need a certificate showing training, experience and competence in medico-legal work. Specialist solicitors doing bulk work in medical claims are the most successful in gaining an efficient conclusion in a reasonably expeditious and satisfactory manner, in accordance with the merits of the claim. A short report by a lawyer on the nub of the claim, the apparent strength or weakness of the evidence, and the percentage chance of success should weed out the weak, strengthen the strong, and promote settlement. Another possibility would be at the pre-trial case management stage to invite the judge to give a pre-trial assessment of the chances of both sides, a provisional view without any commitment. Having seen the provisional view, in order to avoid an expensive five-day trial, one party might give up, or the parties might settle. All parties could be required to observe a duty of candour and openness and disclosure, prohibited from relying upon legal privilege. Every defendant could be required to make an offer, without any admission of liability. There could be greater facility for consolidated, group, collective and class actions, where a number of claimants all appear to have an identical or very similar claim. Although there is already something of a cadre of judges who conduct the medical or clinical negligence cases, a special Medical Court might promote expertise and expedition.
Damages could be reduced. As the claimant receiving a lump sum is in effect being paid in advance for future support those damages are reduced or discounted, the personal injury discount rate, because he can invest the capital sum and receive interest; but because of inflation and low interest rates the discount reduction in the capital sum has recently been decreased, thus increasing the capital sum; this adjustment could be returned to the former level, i.e. back to 2.5% from −0.75%, thus reducing the damages overall. Capital sums could be abolished, leaving the hospital only to make periodical payments so long as the disability of the claimant continued, although the claimant may legitimately need capital immediately in order to buy a bungalow or adapt his dwelling or to buy equipment or to adapt his vehicle. Many hospital trusts favour periodical payments, avoiding huge capital payments; many claimants favour a large capital sum, which they can invest. At present, the successful claimant is entitled to damages on the basis that he will buy services in the private sector, which can be very expensive. Is there any reason why he should not be expected to look to the NHS and Social Services and Housing for ordinary casualty needs in the same way as all other social casualties have to? The damages payment would be greatly reduced, but the NHS would acquire another seriously disabled patient requiring extensive support.
A system once popular in theory is the no fault system. The victim of a medical mishap would automatically qualify for appropriate state support and compensation without any need to prove clinical negligence. There would be no need for litigation. The system has been tried in New Zealand. However, the system has proved quite expensive, for the taxpayer. A compulsory hypothecated insurance scheme or a universal hypothecated levy would distribute the risk, a risk of medical mishap to which most people will be exposed in a lifetime.
The medical world
If the number and extent of medical mishaps can be reduced then patient injury will be reduced as well as all the stress and all the costly legal consequences. Obstetrics is a high-risk area of medicine, with serious consequences for the patient when things go wrong, absorbing around half of the costs involved in medical negligence cases. All NHS hospitals should be subject to frequent and comprehensive independent audit, and the occasional independent work efficiency and effectiveness study. Because the medical world generally is so popular amongst the public, who are anxious about their health and therefore dependent upon the NHS, there is a regrettable tendency for those in the medical world to believe themselves beyond criticism and accountability for efficiency and justified in constantly demanding more money. Adverse reports should result in penalties and fines being imposed upon defaulting administrators personally, not money taken from public funds. The duty of candour should be strictly observed; all medical mishaps should be recorded, and fully discussed by the appropriate team, and an explanation given to the patient, and an apology rendered where proper. Many injured patients are content with the appropriate explanation and apology and do not thereafter seek damages.
All governments claim to facilitate the training of as many new doctors as possible and no doubt try to do so. They deserve public support in this endeavour. Doctor shortage, and indeed nurse shortage, puts the serving doctors, and nurses, under avoidable pressure and stress. Society must make medicine a more attractive profession.
Doctors should be supported reasonably and fairly and sympathetically, recognising the pressures of contemporary medicine and the human fallibility of doctors. Manslaughter by way of gross negligence should be abolished for doctors, or a special doctor’s defence should be created, provided that they were acting in good faith as doctors. Doctors should be able confidently to trust in their medical judgment without fear of criminal prosecution. Better medical outcomes would be the result. Although it is right that the GMC should act to protect the public, it should not seek to punish the doctor for negligence and take him out of practice but rather to ensure so far as possible that the doctor is retrained and supervised and generally supported so that he may as soon as possible be brought back into practice, for the benefit of the public generally. See the Baba-Garba controversy 2018, the GMC seeking striking off when the judge had given a suspended sentence and the MPTS also, GMC action which caused huge resentment amongst the medical profession and deprived the patients of a working, albeit retrained, doctor.
See Jackson report on Review of Civil Litigation Costs: Supplemental Report Fixed Recoverable Costs, July 2017, executive summary para 9 and chapter 8 Clinical Negligence Litigation, pp. 113–118.
Consultation on introducing fixed recoverable costs in lower value clinical negligence claims, summary of consultation responses, Department of Health and Social Care, February 2018.
Unreliable evidence, Clive Anderson, Radio 4, 4 April 8 pm, 8.45 pm.
Action against Medical Accidents AVMA – opposed to fixed costs.
An organisation with a memory, Report of an expert group on learning from adverse events in the NHS, Chairman Liam Donaldson, Chief Medical Officer, Department of Health, HMSO, 2000.