Counting the cost of medical negligence
BMJ 2002; 325 doi: https://doi.org/10.1136/bmj.325.7358.233 (Published 03 August 2002) Cite this as: BMJ 2002;325:233
All rapid responses
Rapid responses are electronic comments to the editor. They enable our users to debate issues raised in articles published on bmj.com. A rapid response is first posted online. If you need the URL (web address) of an individual response, simply click on the response headline and copy the URL from the browser window. A proportion of responses will, after editing, be published online and in the print journal as letters, which are indexed in PubMed. Rapid responses are not indexed in PubMed and they are not journal articles. The BMJ reserves the right to remove responses which are being wilfully misrepresented as published articles or when it is brought to our attention that a response spreads misinformation.
From March 2022, the word limit for rapid responses will be 600 words not including references and author details. We will no longer post responses that exceed this limit.
The word limit for letters selected from posted responses remains 300 words.
The Editor,
The editorial by Fenn1 on the escalating costs of clinical negligence
compensation focused on the financial costs and completely ignored the
human costs of clinical negligence litigation on healthcare personnel and
patients. While there is no denying the fact that financial cost of
clinical negligence compensation under the current tort system is
important, perhaps more important are the effects of the process on
patients and healthcare personnel. What is needed is a radical overhaul of
the complaints and compensation systems from what currently obtains.
Complaints
The Health Service Ombudsman2 recently reported increasing number of
complaints getting to his office in the year 2000-2001 compared with the
previous year. This may represent significant dissatisfaction with the
earlier stages of the complaints procedure. The complaints procedure lacks
external accountability in the initial stages, which can lead to a loss of
confidence in the process.
This loss of confidence has led to an abuse of the system by
patients. It is not uncommon for patients to attempt to employ both the
complaint process and litigation simultaneously even though this is not
allowed. There is also a tendency for patients to want to be done with the
initial stages as quickly as possible to get to the ombudsman, as there is
an increasing perception, rightly or wrongly held that the complaint is
only truly addressed at that level.
The independence enjoyed by the ombudsman needs to be built earlier
into the complaints procedure, to engender confidence and encourage
complainants to use the process, rather than resort to litigation. A
complaints system that commands the respect and confidence of the patient
is essential if patients are to use it as an avenue for seeking redress or
information. A body independent of the NHS to address complaints with
some powers to offer some compensation where appropriate would help
improve the attractiveness of the complaints system.
Compensation
The tort based clinical negligence system is poor in compensating
patients, while leaving a lot of distressed patients and doctors in its
wake.3 What is needed is a more equitable compensation system than the
current tort. A no fault scheme would provide such a system, with fixed
tariffs for specific injuries. Such a system running parallel with a
mechanism for the confidential collection and evaluation of adverse events
with a view to developing strategies for reducing the risk of recurrences.
This would provide quicker compensation while also addressing the cause of
the injuries. It is surprising that while attempts have been made to look
at the possible use of arbitration4 and mediation5 in the resolution of
clinical negligence claims, the NHSLA has only of late launched a pilot
study to evaluate a clinical dispute resolution system with many
characteristics of a no fault scheme.6
The focus on clinical negligence compensation needs to shift from the
finances to the individuals involved, patients and healthcare personnel. A
revamped complaints system with a no fault compensation scheme running in
parallel with a system which addresses issues arising from adverse events
would reduce the costs of clinical negligence. It would deliver quick and
adequate compensation to injured patients, in a non-confrontational
manner, while addressing the problem of medical injuries.
References
1. Fenn P. Counting The Cost of Medical Negligence. BMJ 2002;
325:233-234
2. Health Service Ombudsman in England Scotland and Wales, Annual
Report. 2000-01.
3. Esen U. Tort Compensation for Victims of Medical Accidents.
NLJ.2001;151:846&854
4. Department of Health. Arbitration for Medical Negligence.
London:DOH,1991
5. Mulcahy L, Selwood M, Summerfield L, and Netten A. Mediating
Medical Negligence Claims: An Option for the Future?. Stationary Office.
2000
6. Gibb F. A Quick, Cheap Answer to Costly Medical Claims? The Times,
Tuesday December 4th 2 001.
No Competing Interests
Competing interests: No competing interests
Centralisation of Clinical Negligence costs is not the answer
Dear Sir,
Re: Editorial BMJ 3 August 2002 “Counting the Cost of Medical
Negligence”
I am in broad agreement with Professor Fenn’s view. Whatever the
method of patient compensation, significant benefit will be gained from
feeding back risk management issues identified whilst investigating such
compensation claims. Distancing any organisation from financial
responsibility for compensation will inevitably lessen its accountability.
Professor Fenn suggests that with “centralisation” of financial
responsibility now in place, the NHS Litigation Authority should be able
to improve public information on the cost and trends in clinical
negligence. He states that in the period leading up to this year there
were difficulties in producing consolidated estimates for the NHS accounts
and useful information on the frequency and cost of clinical claims.
Having worked on behalf of and within NHS Trusts, both before and since
the inception of the NHS Litigation Authority, it is disappointing to read
the explanations given for these ‘difficulties’ and the excuses offered
for such limited information being available to date.
The fact of the matter is that the NHS Litigation Authority has
simply not delivered on an important function as set out in its framework
document i.e. to specifically disseminate relevant information on clinical
risk. Over the lifespan of this Authority, some 7 years or so, at its
request large quantities of detailed claims data have been provided by NHS
Trusts. This information would have been of considerable benefit to them
if promptly interpreted and fed back. Unfortunately, the NHS Litigation
Authority has completely failed to deliver on this responsibility. A
recent enquiry of them shows there will be no change in this situation in
the near future.
In the current risk management driven environment, on a background of
spiralling clinical negligence costs, NHS Trusts simply cannot afford to
be denied access to this data. The cynic might suggest that this failure
is in the NHS Litigation Authority’s own interests. The vast amount of
claims data provided by NHS Trusts should be passed to a more capable
body, as soon as possible. It can then be processed effectively and
perhaps this will assist the NHS counter the increasing cost of medical
negligence claims by helping to identify preventable risk.
Yours faithfully
Dr K.J.P.Lessey
Barking, Havering & Redbridge Hospitals NHS Trust Solicitor,
Legal Department,
Harold Wood Hospital,
RM3 OBE
Competing interests: No competing interests