Lawyers, nurses, doctors and others working in clinical negligence litigation will be looking to 2022 and thinking about what might lie ahead for reform to the system. Will our clinical negligence be reformed root and branch, or will only small, piecemeal change take place? When will we all hear? This is a big question for all those concerned with patient safety and health quality.
A review has been promised:
‘Ministers are working on a total overhaul of the “outdated” system of clinical negligence compensation within the NHS … the health and social care committee [was told] that a review of the system was going “at pace” and could involve all claims against the NHS.’
The Health and Social Care Parliamentary Committee (2021) is undertaking an inquiry to examine the case for reform of the NHS litigation system against a background of a significant rise in costs and the need to learn lessons to promote patient safety. It is hard to say which way the government will go, but I suspect the system will not fundamentally change when all options for reform are considered. There might be a few tweaks and tucks here and there, but I don't expect full root-and-branch reform.
Not a new debate
The clinical negligence reform debate is not a new one. We have been here before and not much has happened to change the system. Former Chief Medical Officer Sir Liam Donaldson reported almost two decades ago on the clinical negligence system in his seminal report, Making Amends (Department of Health (DH), 2003). This was a detailed and important discussion of England's clinical negligence, tort-based compensation system and possible alternatives for reform. It cited the pros and cons of the system at the time and made several recommendations. A key issue was the idea of a no-fault-based compensation scheme that the present government is also considering:
‘No fault compensation schemes provide an alternative to tort litigation as a way of providing financial compensation for injuries. They generally remove the need to prove negligence as a criterion for making payments, although most schemes retain a test of causation …’
Regarding comprehensive, no-fault-based liability, the report concluded that this was unaffordable for the NHS.
‘… such a comprehensive no-fault scheme, where payment was automatically available for injury resulting from treatment or missed diagnosis, would open up the potential for tens of thousands of claims per year.’
The report was published in 2003, but it is as relevant today as it was then. The issues discussed have become more pronounced, in terms of the number of patient safety incidents and the increasing costs of claims. That said, it does not mean that we throw the baby out with the bath water and ditch our present clinical negligence compensation system. The merits of the present system in my view far outweigh any perceived demerits or disbenefits.
The interplay between law and patient safety
The DH (2003) report examined the interplay between law and patient safety and is extremely valuable for its analysis. The extent that the present government will make use of this report remains a matter of conjecture, but I suspect it will be considered despite its age. There is no point in reinventing the wheel when it comes to patient safety and clinical negligence litigation policy.
When we talk about something that is as old and venerable as our tort-based compensation system, reports of any vintage are relevant. We should all welcome evidenced, research-based insights into what our legal system is designed to do, its aims and conceptual underpinning.
Underpinning concepts
In a clinical negligence case, when we consider the respective positions of claimant patients and defendant trusts, there is an array of interests to be considered. Underpinning all this is the patient–nurse–doctor relationship. Nestling at the back of our minds should be the fact that the patient is always going to be the weaker party in terms of power, understanding and position.
The litigation process
The law needs to balance this power imbalance, which it largely does through case law, judicial precedent and procedural rules in the case of litigation process. In some instances, governments have passed legislation. More broadly speaking, the law on consent to treatment is a good example of balancing patient rights. In terms of the vindication of patient rights, the seminal case of Chester v Afshar [2004] UKHL 41 is instructive on judicial attitudes to the doctor–patient power relationship.
We are all fallible
Healthcare delivery is an increasingly complex process and it should not be forgotten that some degree of error will be inevitable. Nobody is infallible and we all make mistakes. That said, a patient negligently injured by those who were meant to care for them should have a just and fair right to sue for compensation—to be put back in the position that they would have been in had the tort, negligence, not occurred, so far as money can do this. This is the general aim of an award of damages in tort. Money, it should also be remembered, is poor compensation for the loss of a faculty, amenity, or even a life.
Costs should not be a deal breaker. Yes, the costs of clinical negligence run into billions of pounds and the state makes significant payouts that could have been better spent on frontline health care.
‘… we are still incurring around £8 billion annually for the cost of clinical negligence. We continue to contribute to the work underway across government to address the rising costs of clinical negligence.’
Investigating how these costs can be reduced is a prudent course: it is public money. If we can fine tune the system without impinging on a claimant's right to justly pursue compensation, then there should be no issue.
Back to basics
In the debate over reform, we need to go back to basics and ask ourselves what we want our clinical negligence compensation system to achieve. What conceptual underpinning should we have for the system? We can talk about legal theories such as corrective and distributive justice, which can be seen to be discussed by judges as underpinning theories in some cases where compensation in the law of tort is discussed.
The law's role
As a mechanism for medical and nursing accountability the law provides a channel for dispute resolution. It educates through the publication of past cases and can work to deter negligent conduct. It is a means, a mechanism for ensuring transparency, fair attribution of fault and just redress within an established adversarial justice setting.
Some cases
In discussing clinical negligence litigation, it is always useful to look at past cases, which can help us understand more clearly the patient safety–law interface. There are established law reports, books, blogs, journals etc that include clinical negligence cases, and these are excellent to read and discuss. Another excellent source of information are blogs, or the cases solicitor law firms and barristers report on their websites. These are easily accessible and offer real-time instances of the law in action. An example is Shoosmiths solicitors, whose case studies include Settlement Following Admitted Failures in Nursing Care. The report states:
‘An internal investigation was carried out … following Mr Rollason's death which confirmed that there had been failings by the nursing staff to monitor Mr Rollason's fluid intake and that had the appropriate charts been completed this may have highlighted the need for an earlier response … It was also admitted that ward admission staff had failed to consider the concerns raised by the family.’
Another report is on settlement following ‘never event’ surgery to incorrect hip. It states:
‘Shoosmiths was approached by the daughter of an elderly gentleman suffering from dementia after she was informed by hospital staff that surgery had mistakenly been performed to his incorrect hip …’
Other cases reported by Shoosmiths (Medical negligence clients' stories, https://tinyurl.com/2p8zw2tz) include:
- Settlement for fatal injury after ‘routine’ nursing procedure
- Error in surgical care led to compartment syndrome
- Avoidable death followed repeated failures to diagnose heart infection.
Best practice guide
Another excellent clinical negligence teaching and learning resource is NHS Resolution's Learning From Litigation Claims Guide (Machin et al, 2021), which recommends a best practice learning structure. It is practically focused, with several case studies that will assist healthcare staff learn from claims and help demystify the clinical negligence litigation process. It includes sections on engaging clinical staff, claims reporting, the Getting It Right First Time (GIRFT) litigation data pack five-point plan and recommends approaches to dealing with the impact of claims learning on clinical practice. For example, it states that it ‘can be difficult to always ensure that documentation is sufficiently robust for legal scrutiny’ and suggests the use of templates (Machin et al, 2021:15).
Conclusion
The cost of clinical negligence is an acute issue of national concern and is presently being investigated by the government with a view to reform. The issue is by no means simple and raises a myriad number of complex, almost intractable issues. High financial costs to the NHS are an issue, along with the incalculable emotional and physical costs to the injured claimant. All these interests and needs must be factored into the clinical negligence system reform agenda and be carefully balanced. Shoosmiths solicitors provide practical real-time examples of the events that cause patients to litigate claims.
When thinking about clinical negligence system reform, we need to go back to basics. We need to try to reach conclusions, a consensus on what we want our system to achieve, and identify base premises and conceptual underpinning. We need to ask ourselves why we should treat clinical negligence cases differently from those cases involving surveyors, veterinary surgeons, accountants, solicitors, engineers and so on. What is it that is so special about clinical negligence litigation that requires it to be taken out of the established tort compensation system?
If we answer these questions, we can begin to move forward.