A response to the MPS’ #StrikingaBalance campaign

The rising costs of clinical negligence costs – who pays the price? A response to the MPS’ #StrikingaBalance campaign.

According to its website the Medical Protection Society (MPS) “is the world’s leading protection organisation for doctors, dentists and healthcare professionals”. It has more than 300,000 members around the world.

It has recently launched a #StrikingaBalance campaign to ‘secure the sustainability of the NHS and its workforce’ against the backdrop of ‘the rising costs of clinical negligence’ which need to be ‘controlled urgently’.

The proposed reforms include: –

• A limit on future care costs based on the realities of providing home-based care;
• A limit of future earnings which recognises national average weekly earnings;
• The introduction of fixed costs for small value clinical negligence claims;
• A limit on the number of expert reports that can be commissioned to support a case; and
• The introduction of an ultimate limitation period of ten years after incident.

To put it bluntly the campaign is about as balanced as I would be trying to walk a tightrope after a bottle of tequila!

1. Limiting future care costs

It is contended that this would ensure consistency and fairness avoiding the enormous differences between costings proposed by care experts working for the claimant and the defendant. It is suggested by the MPS that a tariff of annual care costs (dependent on injuries) with an overall cap, ‘would work well’.

The suggestion from the MPS appears to be that Claimant’s are being over-compensated in relation to claims for future care by, for example, employing unqualified carers when the claim was settled on the basis of qualified carers being hired. However, by its own admission the MPS accepts that it has “very little knowledge of how claimant’s choose to arrange for their care once they have received compensation”

Accordingly, the MPS accepts that it has no evidence whatsoever to support the idea that Claimant’s are not spending awards for future care in the way it was envisaged at the time of settlement or that they are in fact being over-compensated.

Further, even if there are “enormous differences between the costings proposed by care experts” very few clinical negligence cases get to Trial solely in relation to the issue of quantum. It is not the case that the damages for future care are either the Defendant’s (lower) figure or the Claimant’s (higher) figure.

In other words, despite these differences (where they exist) the Parties are more often than not able to agree upon a figure for future care which reasonably meets the Claimant’s anticipated future needs.

The MPS recommends a limit on future care costs based on “the realities of providing home based care”. The suggestion here is seemingly that some form of NHS package of care ought to be good enough and that there is no need for additional provision beyond this. This fails to take into account the numerous shortcomings in statutory funding for home-based care such as lack of continuity of carers (because of a high turnover of staff), the ever growing threat of a reduction in the amount of care deemed necessary following a reassessment of need (look no further than the recent changes in entitlement to disability benefits) and the simple fact that Claimant’s and their families have little or no say when it comes to a package of care being provided via the NHS.

Finally, in relation to the concepts of consistency and fairness how would it be fair if a Claimant whose annual care package reasonably cost £150,000 per year (that figure having been agreed between the Parties) was then limited to recovering say £100,000 per year? That, to me, would be patently unfair.

In my view it is only right that injured Claimant’s (a) have the right to choose who cares and supports them following an accident and (b) are provided with sufficient funds to ensure that they able to access the care they need when they need it.

2. Limiting future earnings

The MPS points out that “damages are currently awarded based on the Claimant’s weekly earnings and this means that for a similar claim, higher earners can receive more from the NHS in compensation than lower earners…This could be an important tool for lowering costs in the system and is ultimately fairer.”

You couldn’t make it up! Higher earners can receive more from the NHS compensation than lower earners. Well I never!

In this scenario a doctor earning £175,000 per year is negligent causing someone to lose their entire earnings of say £100,000 per year. The negligently treated patient would only get £27,600 per year, being the average wage whilst the doctor would carry on earning £175,000 a year. Perhaps the MPS ought to consider a proposal whereby in these circumstances the negligent doctor makes up the shortfall personally out of his/her salary. No – I thought not.

The whole concept of damages in English law is to put the victim of negligence back in the position they would have been in had the negligence not occurred. The proposal is fundamentally unfair. Why should ‘high earners’ be in any different position to other Claimant’s? If the loss of earnings happens to be £75,000 a year then that, without question, is what they should be entitled to.

3. The introduction of fixed costs

As a general principle I am not necessarily against the extension of fixed costs into lower value clinical negligence claims. By lower value I mean cases worth up to £25,000.

However, what is most striking about the MPS’ proposal is the suggestion that claims worth up to £250,000 are ‘small value’. By anyone’s standards, £250,000 is not a ‘small value’ claim,

My own view is that claims valued at more than £25,000 are not suited to a fixed costs regime. This is because the majority of claims valued at more than £25,000 require a minimum of four medical reports (2 on each side). In addition, claims valued at over £25,000 require an experienced legal practitioner to oversee. This is not an ‘entry level’ job that any solicitor can do. It requires specialism and expertise to ensure that the claim is run in an efficient and appropriate fashion. Doing the work at too low a level means that issues are missed, unmeritorious claims are run, large claims are under settled and unnecessary work is done.

However, any extension of fixed costs into the clinical negligence field needs to ensure that any case of clinical negligence is still capable of being pursued.

4. A limit on the number of expert reports

Creating an environment in which the Claimant is restricted in terms of the medical evidence that it can obtain but with no such restriction on the Defendant would be unfair and create an even more ‘uneven playing field’. Any cost-cutting restrictions must be even handed.

It is difficult to see how a case in which the Court would currently allow the Parties five or six experts each for the case to be determined could be properly and justly decided in the future if either Party is denied the ability to instruct such experts. The proper resolution of clinical negligence claim depends upon the evidence of experienced and impartial experts.

However, I would not necessarily be against the introduction of some sort of ‘cap’ on the amount of fees paid to experts providing this was at a level that would ensure the majority of expert witnesses would be able to continue accepting instructions.

5. The introduction of an ultimate limitation period of 10 years

It is said that this recommendation would introduce a ‘back stop’ pointing out that in England and Wales it is not unusual to “see the late notification of claims”.

However, what if the adverse incident (for example, the negligent reporting of a CT brain scan) occurred 11 years prior to the Claimant suffering a ruptured aneurysm resulting in permanent and significant brain damage but  which could have been avoided if the initial CT scan had been correctly reported?

Should the Claimant in these circumstances really be deprived of the right to pursue a claim for damages simply because it took more than 10 years for the negligence to become apparent? I think not.

Other ways of reducing costs in clinical negligence claims.

There are numerous other ways in which the costs of clinical negligence claim could be reduced. For example: –

• Saying sorry. In come cases the simple recognition that a patient suffered injury because of negligence or an explanation of what happened might be enough to help an injured patient move on.
• Learning from its mistakes. The most cost effective way for the NHS and/or MPS to save money on the amount of compensation and legal costs paid would be to avoid causing unnecessary harm in the first place. There is a need for a change in culture. The focus should be on the increase in occurrences of negligence and the reasons for this. Reducing the number of avoidable errors would reduce the number of potential claims – saving significant costs in the long term.
• Early admissions of liability/delay. Where unreasonable medical care has injured a patient compensation should be paid quickly and fairly, obviating the need for prolonged and costly litigation. However, liability is rarely admitted in full or at all by the NHS or MPS at an early stage in the claim and even when admissions are made it is still routinely argued that the breach was not causative of any loss. Early admissions would also significantly reduce the amount of expenditure on expert evidence.

I am currently dealing with a claim against an MPS member where the letter of claim was sent in November 2015 and where I am still waiting for a letter of response some 20 months later. This is simply unacceptable and in the circumstances I have had no choice but to commence Court proceedings thereby adding significant additional costs which would otherwise have been entirely avoidable. If this type of conduct is indicative of how the MPS deals with clinical negligence claims more generally is it any wonder that expenditure on these cases is on the rise?

• Accreditation/specialisation. Accreditation could become mandatory for lawyers undertaking medical negligence cases. This would deter incompetent or inexperienced legal representatives from dealing with these claims and would avoid the NHSR/MPS incurring additional costs in investigating and responding to unmeritorious claims.

Summary

Medical negligence claims are usually complicated. These cases require a lot of investigation and evidence gathering. When failings in medical care could and should have been avoided it is only right that the patient should be able to seek redress. Injured patients need (and should be entitled to) guidance and representation.

It is vitally important that the fees paid to Claimant lawyers allow them to carry out their job properly. If the fees do not make the work economically viable it will affect access to the justice to the extent that some entirely justifiable cases may never ‘get off the ground’.

The bottom line is that paying compensation only arises because Hospitals and doctors continue to cause avoidable injuries to their patients. It ought to be entirely possible for costs savings to be made without removing access to justice. The claims process must be improved first to tackle the issues which make medical negligence cases take so much time and work in the first place.

This should be the focus.