The current system for assessing and paying medical negligence claims is “expensive, unsustainable and can cause more harm than good”, according to a report published by the Centre for Policy Studies that said it should be replaced by no-fault compensation.
It identified the provision in section 2(4) of the Law Reform (Personal Injuries) Act 1948, which requires the compensator to disregard the availability of NHS care, as the “root cause” of the problem.
The author, Dr Paul Goldsmith, a consultant neurologist and “policy strategist”, said: “This means the compensation payable is quantified on the basis the claimant will use the award only for private health care, even if they use the NHS. This should be repealed.”
Other problems were that financial awards take into account lost future salaries – “meaning two individuals with identical deficits could receive dramatically different pay-outs” – and that the lack of any reappraisal meant that even if a patient improved, or died, the pay-out stayed with the patient or their family.
Among his recommendations for reform were that if a patient accepted treatment on the NHS, they should also accept they would be put right in the same way as someone else with an identical injury sustained from sheer bad luck, not negligence.
“The money saved from medico-legal reform should be used to fill any shortfall in the ability of the NHS and state more generally to put right both cases,” the report said.
Dr Goldsmith, who is also a non-executive director of the Medical Defence Union, argued that the system should work on a no-fault compensation basis. The National Institute for Clinical Excellence (NICE) “should define the appropriate, evidence-based level of care required and apply this to everyone”.
“This would mean care and support would be activated as soon as it was identified that care and support was required, with no delay for argument as to whether anyone was at fault, or whether there was 49% or 51% probability of fault.
“It would be delivered in an evidence-based and cost-effective way, with everybody treated equally. A child with cerebral palsy would receive the same support as a child with an identical deficit from an obstetric accident.
“In essence this is the ultimate form of no-fault compensation, but avoiding the problems of argument over entry criteria. Everybody gets treated equally. NICE determines the treatment package and the most efficient and evidence based delivery.”
Further, the report said if an individual believed NHS provision to be insufficient, they could take out insurance, for example, to cover loss of earnings, while loss of earnings should be fixed at the National Living Wage or a multiple of salary.
Savings from reform should be used to fund patient safety systems and the learning element of investigations should be improved, Dr Goldsmith added.