A Freedom of Information request has unveiled the enormous fees facing the NHS as a result of medical negligence claims, prompting the government to explore potential solutions
A Freedom of Information request submitted by the BBC has exposed a £4.3 billion legal bill currently being faced by the National Health Service (NHS) to settle outstanding claims of clinical negligence. With the NHS receiving more than 10,000 negligence claims each year, eyes are on the Department of Health to move forward with their promise to address the rise in clinical negligence costs.
Negligence is the failure to exercise an appropriate standard of care. Patients that have been injured due to negligent medical treatment may be entitled to monetary compensation. Failures to diagnose, inaccurate diagnoses, mistakes during procedures, and failure to address possible risks of treatment all fall within the realm of clinical negligence.
To make a claim, patients must show on a balance of probabilities that: a) the treatment received fell below medically acceptable standards, and b) the treatment was a direct cause of their injury. Compensation will depend on how much pain or suffering the patient experienced, patient income, financial loss, and any costs associated with any future care required as a result of the negligence.
The majority of clinical negligence payments are for medical misdiagnosis and surgical negligence. 79 patients between 1st April and 31st October 2015 had surgery performed on the wrong part of their body, and 46 retained a foreign object following surgery. Average payout for claims is estimated to be £50,000, according to the NHS Litigation Authority. Much larger payouts are given out in cases of serious detriment. In 2018, a 6-year-old boy was compensated £37 million for catastrophic brain injury resulting from a delay in detecting herpes simplex virus. Another 7-year-old boy was awarded £27 million for severe brain damage following medical errors during his birth. Overall, the NHS currently spends 2/3 as much on maternity claims, as it spends on maternity services - an illogical split of monetary resources.
While the number of negligence claims remains consistent year to year, changes made to the personal injury scheme in February 2017, increased the cost of settling claims by £1.2 billion. This rise is unsustainable, and while it is reasonably accepted that injured patients should be adequately compensated, the compensation must be balanced against society’s ability to afford it. As it stands, the annual cost of negligence claims could train 6,500 new doctors, according to the Medical Protection Society.
With such significant financial resources being diverted from frontline healthcare services, solutions need to be devised. One potential reform involves repealing s2(4) of the Law Reform (Personal Injuries) Act 1948, which specifies that public services provided by the NHS must be disregarded when calculating how much to give a patient for their future care. This means that payout calculations must be made on the assumption that future care is going to be privately, rather than publicly, provided.
To counter this, the Association of Personal Injury Lawyers believes that it would be inhumane to ask patients use the same services for treatment which caused their injury. The timeline of the delivery of NHS services also cannot be guaranteed, and delayed care can impede successful rehabilitation.
Repealing s2 may be a financially conservative solution, but this should be assessed in comparison to other solutions, such as fixing recoverable costs for small claims, capping or placing tariffs on damages, and using national average weekly earnings rather than individual patient earnings to calculate damages. With the NHS already bleeding financially and operating at over a £570 million deficit; changes need to be made as soon as possible.
Written by Zohra Bhimani, BHSc. First year law student at Queen Mary University of London
Image via Pixabay.