Clinical negligence and its cost. Should tort law apply to doctors and the NHS?

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 5 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.