Copyright Moore Barlow LLP (Moore Blatch and Barlow Robbins merged May 2020)

Getting Defensive

MP’s reported today what many of us medical negligence specialists are all too acutely aware of – that NHS Trusts have a ‘prevailing attitude of defensiveness when things go wrong, and a reluctance to admit mistakes’.

This in turn leads to an increase in the number of medical negligence claims being brought. In my experience this ‘defensiveness’ often continues through to the way claims are subsequently litigated by Trusts leaving the patient doubly prejudiced (and usually by this point, more determined to secure justice, or at least obtain a reasoned response to their concerns, than ever).

The Public Accounts Committee’s most recent report on the financial cost associated with medical negligence identified this failure, in particular a reluctance to admit harmful mistakes earlier when they are made, as contributing to a significant rise in the overall cost of litigation.

The Committee demanded to know why it can take so long for NHS Trusts to resolve claims which are now averaging 426 days compared to 300 days in 2010/11. MPs were of the opinion that NHS Trusts might be contributing to this increase by failing to notify NHS Resolution (the body which represents them in litigation) quickly enough of harmful patient events that have occurred.

The Committee chair, Meg Hillier, noted that

‘The NHS must move more quickly to share best practice in the handling of harmful incidents and complaints. This should be a fundamental part of what remains a disappointingly slow-moving shift towards openness and transparency’.

Repeated government failure to tackle difficulties with the health service – which is buckling due to under investment twinned with increasing demand (yet still expected to make efficiency savings) – was also criticised for causing the increased incidence rate of medical negligence in the first place.

Other points that were included in the report, included:

  • The lack of consistent data being kept across the NHS system, making it impossible to fully understand the root causes of negligence and so harder to learn from mistakes;
  • Almost 40% of medical negligence claims against Trusts are related to a failure or delay to diagnose or treat.
  • More and more patients are waiting longer for their treatments, which in turn can increase the risk of future medical negligence claims as standards of care become adversely affected.

Many of us, who have campaigned for healthcare reform over the years, advocate that the best way to reverse this spiral is to invest more in frontline services in order to minimise the risk of patient injury at the earliest opportunity.

It is worth remembering that the UK is ranked 6th out of the seven countries that form the G7 for healthcare expenditure as a proportion of GDP.

The UK has also been ranked 30th in a global list of countries assessed for health care quality in a recent study published in the Lancet which experts have blamed on its lack of investment, particularly in specialist cancer care.

  • There was growing evidence that when things went wrong, many patients simply wanted an apology or wanted to know that the issue was being dealt with so it wouldn’t happen again. Recent research was quoted which identified that greater transparency does not lead to a greater number of claims.

It can in fact often have the opposite effect in my experience – many of my clients had originally simply sought formal recognition of the wrong done to them, not financial compensation.

  • Currently, only about 4% of people who have suffered a harmful incident whilst under NHS care make a claim.

This is hardly evidence of a ‘compensation culture’.

  • Part of the reason for delays in litigation is NHS Resolution having to manage the pace of settlement ‘within its budget’

This seems to me a somewhat euphemistic expression. My colleagues and I are routinely faced with litigious conduct which routinely drives up cost unnecessarily. Letters of Claim are responded to either late or ambiguously (often both), realistic early settlement offers made by the injured patient are ignored, and strong cases are often defended to the hilt only to settle later on, even when the Trust had never obtained supportive independent liability evidence but had simply relied on what their clinicians had told them.

It seems to me that if NHS Resolution litigated more sensibly, the total annual cost saving made to the NHS would dwarf that aforementioned budget. Is this not a false economy?


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