Abstract
Politicians and the media in the UK vociferously complain about the scale of damages and costs awarded in clinical negligence cases, and constantly attach the blame to the lawyers or, worse, to the injured patients or their families. Sadly the underfunding of the NHS and the increased pressure from the pandemic will make these complaints still louder. Legal ‘reforms’ directed at clinical negligence in particular have already been hinted at by ministers following the Government's spending review, but with cost their sole target they threaten to leave the patient damaged by clinical negligence worse off than those injured by negligence in any other walk of life.
The complainers and the government need to reflect on one simple fact: damages claims only succeed when it is proved or admitted that injury was avoidably caused according to expert opinion by (to paraphrase) “a mistake so bad that no doctor professing the relevant skill would make if acting with reasonable care.” It follows that the true cause of the cost to the NHS is the making of so many serious injurious mistakes which are either proved or admitted to have been negligent. When a car hits a pedestrian on a Zebra crossing no one doubts where the blame lies for the collision and the injuries and the financial consequences, and if the car's brakes were defective the garage which carelessly serviced it will be liable.
It is a logical absurdity to attach the blame for the cost of clinical negligence to the injured patients, their families or their lawyers (easy targets though they are), or to the compensation which they legally recover, and doing so diverts attention from the proper target, the causes of so many mistakes. Those causes are easy to find in the under-funding and understaffing of health care, the over-working and inadequate pay of healthcare professionals, the deterioration in working conditions and the ever downward spiral of morale in the Health Service. Added to this is the continuing failure to improve patient safety significantly even in disciplines where the causes are well known, such as maternity care, where the same seriously damaging errors have been repeated for years at great human as well as economic cost.
Only when the true causes become the focus of righteous anger and are tackled and corrected by all necessary measures will it be possible to eliminate or reduce the incidence of serious and avoidable mistakes and their cost to the taxpayer. Sometimes, the avoidable mistakes are only identified as a result of the injured patients or their families taking legal action. Denying or restricting their access to justice would also mean reducing the likelihood of such errors being identified, investigated and acted upon to avoid their repetition.
As to the cost of damages for clinical negligence and legal costs, the figures are instructive. The NHS is probably the 5th largest employer in the world, with some 1.5 million on its payroll. It self-insures and meets its liabilities out of taxpayers' money, but the combined total paid out in damages and costs at the last available count equated to roughly 1.5% of the total NHS budget. That is substantially less than a commercial organisation of comparable size, risk profile, turnover and number of employees would pay in insurance premiums in the open market for indemnity cover from the companies which provide it. It is further worth noting here that the cost to the NHS of obesity related illness was estimated at £4.2 billion a year by a report from the Royal Society for Public health in 2020 – a figure closely echoed elsewhere. Even after subtracting about a third of that for savings to the NHS from obesity associated early deaths the cost is nearly double that from negligence claims.
Nevertheless the distaste expressed for claims against clinicians is not only found among politicians but also among doctors and some of the defence lawyers who practise in the field. The cynicism of motor insurers (due no doubt to the many undoubtedly fraudulent claims for whiplash etc) finds an echo in disdain for clinical negligence claimants, as if they are all malingerers or ought to know better than to sue a doctor, and also for their lawyers (sometimes sneeringly called “bleeding hearts”). It is an example of seriously distorted attitudes to make scapegoats out of patients injured through no fault of their own by unacceptable clinical errors for the cost of damages awarded to them by judges applying the law, or to criticise their lawyers for getting them the compensation to which everyone else negligently harmed is legally entitled.
Apart from complaining about cost, the proponents of excepting clinicians from suit tend to dwell on the fact that they do a very difficult job, dealing with goods that are already damaged (patients with injury or disease), with the outcome often very uncertain however well they perform, and that their whole and sole aim is to do good rather than harm. But these arguments seem less persuasive when the role of other professionals is considered, whether architects or barristers or engineers or any others. All do a difficult job with a heavy weight of responsibility and often uncertainties of outcome, and none of them set out to do anything but good. The same could be said about airline pilots, crane operators and lorry drivers, but no one suggests that they should be spared allegations of negligence.
Proper concern about the cost of clinical negligence in the UK has led to much debate about limiting access to justice in these kinds of cases, immunity from civil claims for the medical professions, and some kind of “no fault” compensation scheme for medical accidents which it is fondly hoped will supply all injured patients' needs without litigation or blame. An approximation to such a scheme is in place in Sweden, but they have a relatively very small population, about a tenth of the UK's, and have such comprehensive social care (at the cost of very high taxation) that everyone with a disability is probably well enough looked after by the state, from cradle to grave, without compensation. New Zealand also has a version of this, for a similarly tiny population, but endless disputes arise there over whether the bad outcome was a potentially avoidable accident (compensation) or simply the natural effect of the patient's disease (no compensation).
It needs to be recognised that Tort Law matters, and that immunity from it for a single profession or public body would be unjust and harmful to society. The public identification and condemnation by judges of negligence in all walks of life, and the payment of compensation to its victims, serve to acknowledge and to reflect a civilised advanced society's disapprobation of unsafe conduct and need to discourage it, and also to meet its proper desire to supply remedies for injury and loss caused by it to innocent victims.
Awareness that we may be sued if we do not take all sensible and reasonable measures to protect others from our mistakes is a strong disincentive to bad practice and lax standards, and the painful and expensive effects of being sued are a strong incentive to best and safest practice. The modern advances which have been made in risk assessment and risk avoidance in clinical practice are an outstanding example, just as in historical terms the development and application of tort law was vital for the eradication of the dangerous and unsanitary conditions in factories and other workplaces which in Victorian times were commonplace.
In the end immunity from Tort Law for healthcare professionals or the NHS as a unique exception to the law governing everyone else in the population would be a very extreme step and very hard indeed to justify. Tort law in one form or another, in particular the law of negligence, applies to everyone in all advanced societies, - and for good reason. It regulates how we conduct ourselves in all activities of daily life, from architects, accountants, lawyers and manufacturers to tree-fellers and car drivers. By applying the principles of negligence law the courts set and maintain standards of care in every field of human endeavour where carelessness can harm others, and this serves to make and keep us safe as we go about our lives. Clinicians' mistakes can have the gravest consequences. To absolve them and their paymasters from liability for mistakes of a kind which should never be made would reduce the checks and incentives of personal and institutional responsibility, and weaken the imperative to make and keep all patients safe always and by all possible means.
However much we may dislike the cost to the NHS of negligence claims (for which taking all necessary measures to reduce the number of actionable mistakes is the only right solution) there are in a population of nearly 70 million two insurmountable problems with no fault compensation for every bad outcome from healthcare. Either the total amount payable would be too expensive for the taxpayer to bear, or the compensation would have to be so drastically limited to make it affordable that it fell far short of meeting elementary requirements of justice and fairness.
It would be a pity in our civilised society to have to advise a patient paralysed by an inexcusably careless surgeon that his surgeon is in a uniquely privileged position, which means either he has no remedy and he and his family must rely on the threadbare resources of the welfare system, or that the compensation levels will be grossly inadequate, and that he should have got himself paralysed by a careless driver instead.