Medical Protection Society lays out nine-point plan for “urgent” reform of claims

Hallinan: whole system legal reform needed

The price of clinical negligence claims have reached a “tipping point” and urgent reform is needed to bring them under control, the Medical Protection Society (MPS) has argued as it laid out a nine-point plan that included fixed recoverable legal costs for cases worth up to £250,000.

Launching a campaign called ‘Striking the balance’, the MPS – a not-for-profit organisation supporting 300,000 healthcare professionals worldwide – said there should be reasonable compensation for those harmed due to clinical negligence, but that “this must be balanced against society’s ability to pay”.

It said a full-time GP can now expect to receive two clinical negligence claims over a typical career – nine years ago, it was only one. The picture is similar for dentists.

The reform package was part of a three-pronged approach that also highlighted the need to “improve patient safety and the quality and reliability of care delivery”, and secondly “increase our understanding of the drivers of clinical negligence claims to help inform prevention strategies”.

The MPS said it was worried that “the fear of being sued is affecting the way doctors practise, their health and wellbeing, and how they see their future in the profession”.

An MPS survey found that 88% of healthcare professionals were increasingly fearful of being sued, with 72% saying the fear has caused them stress or anxiety. Three-quarters reported that it resulted in them ordering more tests or making more referrals, while 64% said it has made them consider their future in the profession.

Claims costs were rising even though official reports showed “no material deterioration in the quality and safety of primary care in recent years”, the MPS pointed out.

The government is working on a scheme for fixed costs in cases worth up to £25,000 – having flirted with the idea of £250,000 – while Lord Justice Jackson recently acknowledged the specific difficulty of trying to fix costs for clinical negligence cases worth more than £25,000 except in matters where liability and causation have been agreed.

The MPS argued that if spending on clinical negligence by the NHS continued to increase at the same rate as it has over the last five years, it could be paying out £2.6bn a year by 2022 – “a cost that risks becoming unsustainable for society without reform”.

From the £1.5bn paid out in clinical negligence costs in 2015/16, legal costs accounted for 34%, the MPS said.

Alongside a blueprint to improve the prevention of accidents, its plan for legal reform proposed:

  • A limit on future care costs based on “the realities of providing home-based care” – a tariff would be agreed by an expert working party. This would avoid “the enormous differentials between costings proposed by care experts working for the claimant and the defendant”;
  • The use of national average weekly earnings to calculate damages awarded, instead of a patient’s weekly earnings – to avoid higher earners receiving more from the NHS in compensation than lower earners, for a similar claim.
  • The introduction of an ultimate 10-year limit between the date of an adverse incident and when a claim can be made (with judicial discretion in certain cases);
  • A minimum threshold for cash compensation relating to claims for minor injuries;
  • The court would have to allow a patient to withdraw from a claim less than 28 days before trial;
  • A fixed recoverable costs scheme for clinical negligence claims up to a value of £250,000;
  • Putting limits on claimant expert reports covered by after-the-event insurance, such as on the number of expert reports covered, or on costs;
  • Considering ways to reduce expert fees, such as capping fees or the number of experts that can be instructed; and
  • An increase in the small claims track threshold for clinical negligence claims  up £5,000.

Emma Hallinan, MPS director of claims, said: “We believe whole system legal reform is needed and this sits at the heart of our Striking a Balance campaign – we need a regime which achieves a balance between compensation that is reasonable, but also affordable…

“When considering the financial challenges facing the NHS and the change to the personal injury discount rate – which has increased the cost of compensation for clinical negligence, exacerbating an already challenging situation – there has never been a more pertinent time to tackle the root of the problem.

“Of course controlling the cost of clinical negligence once a claim is made, is just one component of a more sustainable system.

“Our report also explores the causes of adverse incidents, acknowledges the need for continued improvements in patient safety, and looks at the complex drivers of claims – from changing patient expectations, through to greater awareness about how to bring a claim.”

Helen Vernon, chief executive of NHS Resolution (the new name for the NHS Litigation Authority), welcomed the report and “the wide ranging debate the report should prompt on how best to address the rising costs of clinical negligence”.
She continued: “Our five-year strategy, Delivering fair resolution and learning from harm looks closely at the drivers of this cost and sets out our commitment to work with and through others to ensure that we learn from what goes wrong and challenge the existing models for delivering compensation.
“The launch of our strategy marked an extension of NHS Resolution’s role to be more involved in incidents at an earlier stage and we fully support the proposal by the MPS for research into why claims are brought so that we can better meet the needs of patients.
“This is how we will become more effective in preventing situations from escalating into unnecessary court action and in resolving concerns in ways other than by litigation.”

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