Every doctor and student of medical systems needs to understand the perverse incentive. I define this as a “driver within a system that works against the overall objective of the system”. Claims for medical Negligence in our tort driven system are necessary to arrest or slow down the continuing decline in standards. Unfortunately Dr Barton is correct: the 4 health services have lawyers who are salaried and paid win or lose, and 80% of claims result in success! The argument for no fault compensation has been addressed properly in NZ and several other countries, and Australia appears to have found a half way house…
Sir, Your article “£4bn budget for legal fees in NHS negligence claims” (Jan 22) points out that the health service faces legal costs of £4.3 billion as part of a compensation bill for clinical negligence claims of £83 billion. The extent of this crisis cannot be overemphasised, as over the past three years the bill appears to have risen from £54 billion, according to the Department of Health. Apart from the usual platitudes about being careful, no one appears to be interested in addressing this parlous situation.
I previously worked for seven years in Australia, where this became a big problem and was addressed by an act of parliament transferring the liability risk away from the provider, unless it was ruled criminal negligence. This has led to a year-on-year fall of medical protection and indemnity fees for colleagues in Australia, while those in the UK have risen inexorably, providing yet another reason why doctors are giving up in droves and taking early retirement.
The start of a new government offers an ideal moment to address this festering sore on the NHS’s future.
Professor Angus Dalgleish
Foundation professor of oncology, University of London
Sir, As medical litigation costs spiral and threaten the future of the NHS, the case for a no-fault compensation system becomes overwhelming. At present, if a patient cannot prove medical negligence, they will receive no financial compensation — the decision sometimes having more to do with inadequate record-keeping than true clinical incompetence or negligence. As a result, two patients may have identical medical injuries but one will receive nothing whereas the other may be well compensated after perhaps years of litigation.
New Zealand has had a successful no-fault compensation scheme since 1974, with changes in 2005 ironing out some of its early anomalies, resulting in most claims being resolved in weeks rather than years. Litigation lawyers are the only people benefiting from the system in the UK.
Dr Andrew Quayle
Retired GP, Martock, Somerset
Sir, The cost of medical negligence (or accidents) is indeed high, but the possibility that the size of a giant claim might be reduced means that many cases end up in court because the legal fees justify an expensive defence. However, with court and legal costs of about £2,800 per day on top of barristers’ and solicitors’ fees it is often cheaper for an NHS Trust to settle a little case for a small sum than to defend it. While this is often done without an admission of liability it is open to abuse, because once word gets around it may generate frivolous or spurious “me too” claims that result in a payment of a few hundred pounds without many questions being asked. The system needs to address this as well as the top-end settlements.
Dr Andrew Bamji
Rye, E Sussex
Sir, NHS legal costs are inflated partly because of perverse incentives. NHS lawyers are paid win or lose, which encourages “deny, delay, defend” behaviour and promotes speculative defences. By contrast, claimant lawyers are generally paid “no win, no fee”; payment is by result, which imposes commercial prudence. This is amply borne out by NHS Resolution figures which show that compensation is paid in 80 per cent of cases where proceedings are issued. NHS lawyers should be paid by result and not rewarded for failure.
Dr Anthony Barton
Solicitor, Medical Negligence Team
Professional Liability Insurance : Market Global Report Jan 2020 – Fusion Science Academy
The NHS is facing an existential crisis. The negotiations over junior doctors’ pay and conditions and widespread dissatisfaction among GPs, combined with a £2.45bn overspend by NHS Trusts, is impacting on patient care. The NHS is treating more patients than ever before, including a rapidly growing number of elderly people whose care, in many cases, is caught in a Mexican stand-off between the NHS and social services.
The NHS announced it has paid out more than £1.63 billion in damages for medical negligence in 2017/18; this is an increase from £1.08 billion in 2016/17 with the highest number of claims coming from emergency medicine. The number of claims made as a whole has decreased slightly (0.12%), but the cost to the NHS continues to increase.
The cases outlined below are some of our most notable and an indication of what can go wrong when the caring services come under pressure – and these are just the tip of the iceberg……