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Health Forum Seminar

I recently attended a Westminster Health Forum Seminar in London. The key topic of the Seminar was the future funding of the NHS and how the cost of clinical negligence claims is too high and therefore causing pressure upon the NHS and the services they can offer.

There were many esteemed speakers at the Conference including Helen Vernon, the Chief Executive of NHS Resolution (the NHS body which defends claims on behalf of Hospital Trusts), Dr. Christine Tomkins, the Chief Executive of the Medical Defence Union as well as Professor Tim Draycott, Consultant Obstetrician at North Bristol NHS Trust, Professor Tim Briggs who is a Consultant Orthopaedic Surgeon at the Royal National Orthopaedic Hospital NHS Trust and Jenny George, Director, Health Value for Money Audit at the National Audit Office (NAO).

The NAO report has concluded that the cost of clinical negligence claims are prohibitively expensive. The report stated “Many clinical negligence cases are complex, and establishing causality and the amount of damages involve uncertainties. Negotiating an outcome for these cases can be time consuming.”

The NAO report goes onto say that action by NHS Resolution alone will not be enough to tackle rising costs in clinical negligence and that other measures should be considered; that means tackling and reducing Claimants’ legal costs.

What I found interesting is that the Chief Executive of NHS Resolution and the MDU respectively have latched onto this as if reducing the Claimants’ legal costs alone will solve the problem. This populist theory may sound good on paper but, in my opinion, the reality is they are focusing upon the symptom and not the cause.

Claimants’ legal costs relating to clinical negligence claims against the NHS total less than 1% of the total annual NHS budget. The legal costs alone are not the problem.

All that will happen if the legal costs are reduced is that this will restrict access to justice and innocent victims where Hospitals have made mistakes, will go uncompensated.

Dr. Christine Tomkins, The Chief Executive of the MDU, goes one step even further. The MDU indemnify GPs’ against the claims that they face. While she accepts that Claimants must be compensated, she says that the compensation must “be fair and it must not damage access to the healthcare we will need”. One of her organisation’s suggested solution is to place “a sensible limit” on the recovery of future loss of earnings, pegged against the national living wage. Therefore, if you happen to be the unfortunate victim of a GP’s (or hospital’s) negligence and successfully pursue the claim but happen to be earning more than the national living wage, you would not recover the full extent of loss of earnings to which you would be normally entitled by law.

This simply cannot be true justice. The purpose of the claim is to put the Claimant back in the position that they were prior to the negligence, as far as possible, and that should mean no cap on loss of earnings.

What I also found fascinating was that two other speakers, both medical professionals, took a vastly different approach in answer to how to tackle the rising cost of clinical negligence claims. That approach is to reduce preventable harm i.e. safer care costs less.

Professor Draycott made the very valid point that talk about caps and limits are not very positive words to hear from the victims of clinical negligence. Such a victim would rather not have the money, they would rather be OK. His view, and one with which I would wholeheartedly agree, is what would work for patients is reducing the human cost of harm because that by itself would reduce the cost of clinical negligence claims. If you reduce preventable harm, claims would drop naturally which in turn would reduce the legal costs.

Rather than focusing their attack upon Claimants’ legal costs and blaming them, surely it would be a far better focus to try and learn from the mistakes that happen whilst a patient is in NHS care to ensure that they don’t happen again. As a practitioner in the field, I, as many of my colleagues do too, we see time and time again the same mistake happen and lessons are not being learned.

More time and money should be invested in training doctors and nurses to reduce preventable harm. For example, I was recently at another Conference and told by a Consultant Gynecologist and Obstetrician that when he qualified and became a Consultant some 30 years ago, it required 39,000 hours of training and on hands experience whereas now it only takes 12,500 hours – this is less than one-third of the time and it is inevitable that this more recently qualified Consultant will not have come across the same problems in day to day practice as his more senior consultant colleague would have done during his training.

I also read recently that a new clinical report published stated babies are just as likely to be left brain damaged by the most serious errors in maternity care as they were 20 years ago. A review of NHS compensation claims found that the most serious examples of medical negligence – including failure to monitor heart rates properly – have barely changed in the last 20 to 25 years. The report points to issues with individual midwives and doctors but also says that there are NHS – wide problems with staff training.

I find the report findings both startling and sad, as one would expect a reduction in serious errors due to the advancement made with medicine over that time.

Simply advocating the reduction in Claimants’ legal costs is not the solution to the problem. It is a sticking plaster solution only. A more concerted effort should be made to reduce preventable harm where possible which would have the knock-on effect of reducing the clinical negligence claims in the first place.

Jonathan Austen-Jones

16 October 2017

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