Reducing the costs of clinical negligence compensation
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.
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.
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.
1. Fenn P. Counting The Cost of Medical Negligence. BMJ 2002;
2. Health Service Ombudsman in England Scotland and Wales, Annual
3. Esen U. Tort Compensation for Victims of Medical Accidents.
4. Department of Health. Arbitration for Medical Negligence.
5. Mulcahy L, Selwood M, Summerfield L, and Netten A. Mediating
Medical Negligence Claims: An Option for the Future?. Stationary Office.
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