Tackling the cost of clinical negligence

The cost of clinical negligence continues to rise, as demonstrated in the NHSLA Triennial Review, but what is Medical Protection doing for members to tackle the problem? Head of Medical Services, Dr Nick Clements, explains.

The recently published Triennial Review of the NHS Litigation Authority (NHSLA) brought several important issues to national attention, especially the increasing cost of clinical negligence.

The report states that the NHSLA is well led and efficient; but recommends a review of options around claimant costs and the long-term affordability of damage levels. Medical Protection believes this is an important recommendation; however there should be a wider debate about the merits of limiting damages, in particular future loss of earnings and care.

The NHSLA estimates that £28.3bn will be needed to cover known and future claims for clinical negligence for past patient care, up by 10% on last year, which is a significant indicator of the rising cost of clinical negligence claims.

The report agrees with Medical Protection that fixed costs for small value clinical negligence claims are needed; the next step is to have a debate on the merits of a limit on future earnings and future care costs in special damages awards.

In our experience, damages, in particular, future care costs and earnings, have increased in recent years. We could learn from other countries; in some Australian states there are limits on the loss of earnings at, typically, a multiple of two or three times the average weekly earnings.

As difficult decisions are made about what the NHS can afford, it is crucial that we ask ourselves whether it is appropriate and affordable to continue to pay such high costs in damages. Medical Protection believes that these costs could be better spent on patient care for all.

As part of our priorities for the new Government, Medical Protection made four recommendations to tackle the rising cost of clinical negligence:

• A debate on the merits of a limit on special damages
• Fixed costs for small value clinical negligence claims
• An ultimate limitation period on bringing claims
• Reform rules relating to claimant expert reports covered by ‘after the event’ insurance.

The Government has agreed with MPS on the need to introduce a fixed costs regime for small value clinical negligence claims. Health Minister Ben Gummer has outlined plans for a fixed costs regime in a letter to Lord Dyson, Master of the Rolls and Head of Civil Justice. The proposals include fixing legal costs to a percentage of the compensation won for patients in claims of up to £100,000.

A formal consultation on fixed costs for small value clinical negligence claims is due to take place later this year, which Medical Protection will respond to as part of our continued engagement with key policy-makers and stakeholders to drive the proposals forward.

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Please note: Medical Protection does not maintain this article and therefore the advice given may be incorrect or out of date, and may not constitute a definitive or complete statement of the legal, regulatory and/or clinical environment. MPS accepts no responsibility for the accuracy or completeness of the advice given, in particular where the legal, regulatory and/or clinical environment has changed. Articles are not intended to constitute advice in any specific situation, and if you are a member you should contact Medical Protection for tailored advice. All implied warranties and conditions are excluded, to the maximum extent permitted by law.