Should we sue doctors? Law Pod UK latest episode
20 January 2020
The BBC today published a report following a Freedom of Information request that the NHS “faces paying out £4.3 billion in legal fees to settle outstanding claims in clinical negligence. Read the report here. The vast inflation in damages awards in clinical negligence claims means that the cost to the health services is producing great concern in those who have to address the financial future of the NHS. This is particularly an issue with birth disasters where the life expectancy of the child, however badly damaged, is lengthy and therefore ongoing costs, notably care costs, stretch long into the future.
In May 2019, former Court of Appeal judge Rupert Jackson proposed a series of solutions to this problem, including replacing the principle of full compensation with a system of tariffs . This may be along the lines of the current scheme operated by the Criminal Injury Compensation Authority . He also called for a new test for liability, which would ask whether the patient had suffered ‘reasonably avoidable injury’. You can read Sir Rupert Jackson’s full paper here:
Medical errors: Sanctions and compensation – is there another way?
In this episode I’ve brought together two members of 1 Crown Office Row who have spent their professional lives both claiming against and defending the NHS. James Badenoch QC, now retired, maintains that the existence of these claims is justified by the pressure to improve clinical practice.
David Hart QC provides us with the details of the very considerable figures paid out recently by the NHS in settlements and awards. The source of these figures and others can be found here:
NHS Resolution Annual Report and Accounts 2018-2019
So what are the solutions – or what, some might say, are the threats – to the principle of full compensation in the medical context? Do listen to this discussion between two experts in the field.
- Doctor knows best?
- Scope of Duty and Causation – Chester and Afshar Revisited Part 1
- Scope of Duty and Causation – Chester and Afshar Revisited Part 2
- Disaster Avoidance for Experts
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What a thought-provoking episode, especially the point that compensation claims can actually drive improvements in clinical care, not just add financial pressure. It made me pause and think: while the NHS grapples with rising claim costs, making sure people aren’t forgotten in the system is the real goal. For anyone interested in how these issues are addressed in Ireland, I found Kearney Law Group’s medical negligence guide https://kearneylaw.ie/our-services/medical-negligence/ to be a compassionate and clear overview of how the law helps people seek justice and improvement.
As someone who has studied disasters in a wide variety of man-made systems for quite a long time, a critical question for me is, “What is the feedback mechanism from legal actions to clinical practice?” . This question applies also to cases where there is an out-of-court settlement and NDA rather than a legal judgement. The reason is that, from my experience, although each case is unique, there are inevitable patterns that emerge from such a large number of cases over a long period of time. I am concerned as to whether there is a sufficient mechanism to ensure that adequate learnings are fed back into the system of clinical practice.