Cap lawyers' fees and future care costs to save NHS, report says

Urgent reform of clinical negligence compensation and associated legal costs is needed to avoid ‘exacerbating an already challenging situation’ for the health service, campaigners have said.

The NHS spent £1.5bn on claims last year, which the Medical Protection Society equates to the cost of training over 6,500 new doctors. Legal costs were said to account for 34 per cent of 2015/16’s bill.

The group said spend increased by 72 percent over the five years – an average 11.5 per cent increase every year. Continuing on this trajectory would see the NHS’ annual bill increase to £2.6bn by 2022.

Meanwhile, NHS Resolution has estimated that £56.1bn will be needed for claims arising from incidents that have already occurred.

Liz Truss’ change to the discount rate is also said to have significantly increased compensation awards on all claims settled where there are future costs, such as care costs or loss of earnings.

In its report, ‘The Rising Costs of Clinical Negligence: Who pays the Price?’, healthcare professionals’ organisation calls for nine reforms to control costs and strike a balance between compensation that is reasonable and affordable.

These include a limit on future care costs based on a tariff agreed by an expert group; the use of national average weekly earnings to calculate damages for future loss of earnings; fixed recoverable costs for claims up £250,000; and an increase in the small claims track threshold for claims up £5,000.

The group also calls for a minimum threshold for cash compensation for minor injuries; changes to provisions so patients would need to seek court approval to withdraw from a claim less than 28 days before trial; changes to the rules relating to claimant expert reports covered by after-the-event insurance, such as a limit on the number of reports covered or a cap on costs; and consideration of ways to reduce expert fees, such as capping fees or the number of experts that can be instructed.

Emma Hallinan, director of claims at MPS, said a balance needed to be struck between compensating patients by the health service and society’s ability to pay for clinical mistakes

‘If the current trend continues the balance will tip too far and the cost risks becoming unsustainable for the NHS and ultimately for society,’ she said. ‘This is without doubt a difficult debate to have, but difficult decisions are made about spending in healthcare every day and we have reached a point where the amount society pays for clinical negligence must be one of them.

‘There is growing recognition from government on the need for a more sustainable long-term solution. A YouGov survey also showed that 73 per cent of the public support changes to the legal system that could reduce the cost of clinical negligence to the NHS.

However, Yasmin Ameer, a serious injury specialist at Nockolds, stressed it was important to look beyond the report’s headline figures and consider how medical negligence can impact patients’ lives.

‘I am acting for a young girl who lost her legs after her father was twice turned away from hospital. She was eventually admitted to hospital on the third visit. By this time she was suffering from septicaemic shock and multiple organ failure, and it was too late for doctors to save her legs. Her left leg had to be removed above the knee, while her right leg was amputated below the knee,’ she said.

‘In another case, a mother whose baby was suffering from reduced movement was kept waiting over five hours for an emergency caesarean section. As a result, her baby was born severely distressed and suffered hypoxic brain injury.’

Also commenting on the findings, Hilary Meredith, chair of Hilary Meredith Solicitors said: ‘We put our absolute trust and faith in the medical profession and when things go wrong it can have the most shocking consequences on our health and wellbeing.

‘It is accepted that risks can occur in surgery and these to the most part are explained in full – but mistakes over and above the risk of surgery are not acceptable.

‘Without highlighting those mistakes in cases that come before the law courts, no changes will be made. It is up to the medical profession to ensure standards are kept and mistakes are reduced.’

Action against Medical Accident, a patient support organisation, was also not convinced by MPS’s recommendations. ‘These proposals ignore the main reasons for the high cost of clinical negligence to the NHS,’ said chief executive Peter Walsh.

These are firstly, the unacceptable number of negligent mistakes being made that ruin people’s lives, and secondly the inappropriate denials and defence of claims which should have been recognised as valid much earlier. Collectively, they amount to either an ignorant or cynical attack on access to justice for injured patients.

‘We hope that the Government will recognise them as such and concentrate on preventing these mistakes in the first place and preserving access to justice for the victims of clinical negligence.’

John van der Luit-Drummond is deputy editor of Solicitors Journal

john.vanderluit@solicitorsjournal.co.uk | @JvdLD