Compensating for clinical negligence: the need to go back to basics

Currently our adversarial, tort-based clinical negligence compensation system is being reviewed by the Government with a view to reform (Hyde, 2021). This review will raise some fundamental issues such as the nature and purpose of the system. What are and what should be the underlying objectives of the system? How do we deal with competing interests and which, if any, should prevail?

In considering clinical negligence reform today it is important that the reviewers do not try to reinvent the wheel and fail to consider the seminal reports of the past, which can make an immense contribution to the debate.

With clinical negligence litigation today, there is a much more cooperative, ‘cards on the table’ approach than formerly. As NHS Resolution annual reports show us each year, most clinical negligence cases do not proceed to trial and are settled without going to court—mediation and alternative dispute resolution methods are used (NHS Resolution, 2020). NHS Resolution (2021) points out that in 2020/21, of 299 mediated cases, 77% were settled on the day mediation took place or within 28 days. Of 15 674 claims settled, 74.7% were settled without any formal court proceedings, an increase on 71.5% in 2019/20 (NHS Resolution, 2021: 18). NHS Resolution states that the increase in the number of claims settling without court proceedings is due to efforts to avoid the need for court proceedings, and also notes that the response to the COVID-19 pandemic led to ‘a spirit of co-operation in our work with claimant solicitors’ (NHS Resolution, 2021: 18).