Fault lines: resolving clinical negligence claims

The cost of clinical negligence claims against the NHS in England rose to £1.259bn ($1.9bn, €1.5bn) in the last financial year, and the number of new cases in 2012-13 climbed by 10.8% to more than 10 000.1 The year before, in 2011-12, the bill breached £1bn for the first time after a 30% rise in claims the previous year, forcing the UK government to pump in an emergency cash injection.2

The figures highlight the ballooning cost of resolving medical injury claims through the traditional tort system. The number of claims is rising, payouts in the most serious cases are getting bigger, and the legal costs remain stubbornly high. Is there a better, more cost effective, and fairer way to compensate patients who are harmed during medical treatment?

In at least one of the UK’s four countries, the powers that be think the answer is yes. Scotland is considering a no-fault compensation system for medical injuries, in line with the recommendations of a government appointed review group.3

In England, no-fault compensation has been debated for decades but has never got off the ground. In 1978 the Pearson Royal Commission rejected the idea of a no-fault scheme for medical injuries, arguing that the scope would be hard to define.4 The issue surfaced again in 1997, when the incoming Labour government was considering former Treasury permanent secretary Peter Middleton’s recommendation for a no-fault scheme. Middleton contended, “It makes very little sense to have an increasing amount of time and money from the health budget extracted in legal fees rather than patient care, and to engage in a set of arrangements …