Intended for healthcare professionals

Careers

Tackling the rising cost of clinical negligence claims

BMJ 2017; 356 doi: https://doi.org/10.1136/bmj.j210 (Published 19 January 2017) Cite this as: BMJ 2017;356:j210
  1. Abi Rimmer
  1. BMJ Careers
  1. arimmer{at}bmj.com

Abstract

Clinical negligence claims represent a huge cost to the NHS, and medical defence unions argue that costs will continue to rise if nothing is done. Abi Rimmer reports

Over £1.5bn (€1.73bn; $1.84bn) was paid out by the Department of Health for clinical negligence claims in 2015-16, and the department’s provision for known and future claims in that year totalled £56bn.1 This summer the National Audit Office (NAO), which published the figures, will begin to look at what can be done to reduce these costs.

The NHS Litigation Authority is the organisation that manages clinical negligence claims for all NHS trusts in England. Under its main scheme, NHS trusts pay into a risk pool and receive indemnity cover. The NAO says that the authority received 11 000 new clinical negligence claims in 2015-16. Doctors such as independent practitioners and GPs who are not covered by the NHS Litigation Authority pay for indemnity cover from medical defence organisations.

The NAO says that its study will look into whether the health department and the NHS Litigation Authority understand what is causing the increase in costs. It will also evaluate both organisations’ efforts to manage and reduce the cost of claims.

The NAO also plans to look at how the authority has helped trusts to reduce the number of negligence claims they receive “by sharing learning about past incidents and by encouraging wider forms of redress for affected patients.”

Legal costs

As part of efforts to reduce costs, medical defence organisations have been calling for a cap on the amount that lawyers can charge in costs. In 2015 the government unveiled plans to cap legal fees in clinical negligence claims in an effort to save the NHS as much as £80m a year.2

Since then Mike Devlin, head of professional standards and liaison at the Medical Defence Union (MDU), says that the government has promised a consultation on these issues, which he expects to see launched later this month. The proposal, he says, is to introduce fixed costs for lawyers in personal injury cases, including clinical negligence claims.

Like the MDU, the Medical and Dental Defence Union of Scotland (MDDUS) is also concerned about the rising cost of claims and the funds going to lawyers and other advisers.

The MDDUS argues that there is no evidence of doctors’ and dentists’ standard of practice deteriorating. “What is happening is an industrial exploitation of the sector and ever more creative damages claims being advanced,” Chris Kenny, the chief executive of MDDUS, told BMJ Careers. “This damages the doctor-patient relationship and puts unnecessary stress—personally and financially—on the NHS and the individual practitioner.”

He says that legal costs can exceed damages significantly, even if claims are promptly settled with the minimum necessary investigation. “There is far too much frontloading of legal cost by claimants’ lawyers,” Kenny says. “By way of example, MDDUS can quote a case of alleged delay in diagnosis of breast cancer, where the case was settled for £35 000 with the claimant’s costs submitted at over £200 000.”

Why costs are rising

Devlin says that one of the biggest problems, in terms of resolving the issue of the rising cost of claims, is understanding why costs are increasing. “No one has properly understood why the cost of claims is going up at the rate that it is, because it is largely driven by the cost of long term care,” he says. “A better understanding of that needs to happen to see whether there are any factors that can be controlled.”

One of the ways that defence organisations such as the MDU would like claims to be controlled is through the repeal of a 1945 personal injury law that allows the cost of future care to be calculated on the basis of private care cost rather than NHS cost. The MDU says the law means that defendants must disregard NHS care when paying compensation to patients, resulting in billions of pounds from NHS funds going to the independent sector.

Devlin says, “We think that is an excellent starting point which will not only help to put the brakes on the spiralling cost of claims but will allow money that would otherwise have left the public sector to be funnelled back into it, and indirectly that will help more patients.”

Under the MDU’s proposed model, claimants would be awarded a care package that would guarantee their ongoing care. “The idea of a guarantee will help to put patients’ minds at rest,” Devlin says. “They would still have that certainty, and arguably more certainty.

“In the current situation, indemnifiers pay a lump sum, and once patients have the lump sum, if they then live for much longer and require more care as they get older, then there is a realistic chance that the lump sum might not cover their costs. So the idea of a care package that is guaranteed might in fact be better than the current system.”

The MDU believes that providing claimants’ care in the public sector could benefit other patients. Devlin says, “There will be an initial expense, but it means that those facilities that they build—whether it’s residential accommodation to support people, whether it’s facilities for hydrotherapy, and so on—can then be enjoyed by far greater numbers of individuals, including those who have not been harmed through negligent care but have the same long term needs. So there is a definite social benefit in going down that particular route.”

Enacting this change would require upfront funding for the NHS and local authorities, which would be expected to care for claimants. “There would be a substantial investment initially to make sure the needs can be met,” says Devlin. “Once that’s done, the overall picture would be much healthier in terms of finances than if the care was contracted out to the private sector.”

Indemnity fees

Devlin says that introducing measures to control clinical negligence claims costs and capping lawyers’ fees would not reduce doctors’ indemnity fees but could help to stop them rising.

“It wouldn’t reduce fees, but the hope is that the rate of increase would level off. Once the claims costs are controlled that rate of increase starts to go down, and then the money that needs to be invested to meet the cost of future claims will also come down,” says Devlin.

He adds, “That is something I think doctors would welcome. At the moment there is no doubt that a lot of doctors are feeling the pinch—salaries aren’t going up at the same rate as indemnity cover.”

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