According to NHS Resolution, the body that defends clinical negligence claims against the NHS, the cost of medical negligence litigation has fallen for the second year running – although the percentage attributed to maternity claims has not changed. The government is currently consulting on NHS litigation reform ‘against a background of significant increase in costs’ which implies that the Health & Social Care Committee has been reading a different report to the rest of us.
Nonetheless, one point the Committee’s call for evidence does make, with which most of us practising clinical negligence law will agree, is ‘that the clinical negligence process fails to do enough to encourage lessons being learnt which promote future patient safety’.
Collaborative approach to claims reduces costs…
Earlier this year I wrote about the HSCC’s report into the safety of maternity services and the fact that obstetric-related claims accounted for almost half of all compensation awarded. It noted that our system of establishing legal liability by proving clinical negligence rather than, for example, adopting a no-blame compensation scheme, actively mitigates against the promotion of an open, transparent environment in which patient safety should trump all other considerations. Indeed, the report recognised that an endemic ‘blame culture’ throughout the NHS acts as a major barrier to improving patient safety, which, in turn, continues to contribute to mistakes being made. Although the cost of settling medical negligence claims remains eye watering, the NHS Resolution 2020/21 annual report actually records a decrease in litigation costs compared to previous years. This is a result of better collaboration between all parties and a subsequent increase in settling claims out of court using other dispute resolution avenues such as mediation. Nonetheless, as pointed out by the chair of the Society of Clinical Injury Lawyers in a recent article in The Times, no amount of collaboration between the NHS and medical negligence lawyers addresses ‘the wider structural reform of the NHS to deliver more co-ordinated lessons around patient safety.’
…but saying sorry will reduce them further
Until clinicians can be confident that they will be supported if they apologise to patients and explain what happened if something has gone wrong, the problem of staff not admitting mistakes will continue and claims continue to rise. It is only through such admissions that patient safety issues can be properly addressed and procedures amended so that the same mistake is not made twice. Just as critically, a system for disseminating lessons learnt needs to put in place so that every trust in the country can benefit. Encouraging medical practitioners to be transparent and honest about their failings and putting patient safety at the centre of every trust’s operations will have the direct effect of reducing the number of negligence claims.
Professionalise patient safety
Over 90% of acute Trusts have signed the ‘sign up to safety’ pledge originally launched by Jeremy Hunt in 2014, the stated purpose of which is to ‘make the NHS the safest healthcare system in the world’. Writing for the King’s Fund, Suzette Woodward, a member of the Sign up to Safety campaign team, acknowledged the difficulties of implementing successful patient safety systems ‘at scale’ despite the amount of available guidance produced from both national and international studies. As she notes, the sheer quantity of information being disseminated on a range of clinical issues means that only the most immediately pertinent will grab a clinician’s attention. This has led to a proposal to professionalise patient safety, a move endorsed by the National Nursing Research Unit at King’s College which found that ‘clinical engagement, committed leadership and ‘externally-positioned quality improvement staff’ working with front-line staff were critical for introducing and securing change.’
As a medical negligence lawyer, I see many heart-rending cases, the majority of which arise from genuine error as a result of multiple (and often interacting) factors. I certainly welcome a more cooperative approach to resolving claims quickly but I also want to see claims being reduced because lessons are being learned and fewer mistakes being made. As I have said repeatedly, most of my patients just want an explanation and an apology and not to be drawn into lengthy, and painful, litigation.