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When the NHS spends billions on personal injury cases, it’s the public that loses

Hunt’s radical plan to reform compensation for clinical negligence is “completely unacceptable” says the Association of Personal Injury Lawyers, which includes some of the kinds of firms that urge people to sue the NHS, soliciting online, in TV ads or posters in waiting rooms.

Damages paid by the NHS as a result of medical negligence claims have soared exponentially over the last decade, up from £900m to £2.2bn now. Yet despite horror stories of deaths and life-changing damage in badly run maternity wards, the National Audit Office (NAO) finds no evidence of more injuries, only that the number of claims and sums awarded by courts are shooting up. The NAO found that “the claimant’s legal costs exceeded the damages awarded in 61% of claims settled”. Though the lawyers in the clinical compensation business protest vigorously that they defend patients’ rights, the Hunt committee demolishes any justification for the present system.

The report quotes Sir Ian Kennedy QC, the chair of many inquiries and emeritus professor of health law and ethics at University College London, who wrote in 2021 that clinical negligence was an “outdated, arbitrary and scandalously expensive system” with a “stranglehold that lawyers exert over a system that should be putting the interests and needs of patients first”.

What injured patients need is an independent authority to conduct a speedy and transparent investigation of what went wrong, with everyone free to speak openly, ending in reasonable compensation and a pledge to prevent anyone else being put at risk by the same error. Peter Walsh, the chief executive of Action Against Medical Accidents, told the committee that litigation was often “a last-gasp attempt to get a sense of justice and to get to the bottom of what has actually happened after people have experienced denial after denial”.

Instead of a system of delays and denials that frustrates grieving families and terrorises doctors as lawyers seek to pin personal blame on someone, the committee proposes a system closer to those used in New Zealand and Scandinavia. An independent administrative body would investigate a patient’s case to see if the harm done was avoidable and if so, to fix fair compensation briskly within six months. The priority would be openness and learning from mistakes to protect future patients. Not needing to find a person to blame makes it easier for patients to get compensation – but the payout would be far lower. Some warn this lower burden of proof would encourage a flood of claims, but New Zealand found a similar system ended up halving the sums paid out. 

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Source: The Guardian, 3 May 2022


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