Last reviewed 16 May 2014

Nigel Baker, of Lexicon Employment Law Training, highlights the increasing claims for compensation made by patients and others who allege that they are directly or indirectly the victims of negligent treatment or health care from the NHS.

Claims relating to medical negligence are nothing new, and it is right that there is a form of civil redress for those who have suffered from substandard medical care. The NHS is one of the world’s largest employers and has more than 1.7 million staff in the UK. Despite ever-increasing technological and scientific advancement, an organisation can only be as good as its weakest link and this invariably comes down to the competence and ultimate performance of its staff at all levels.

With many medical procedures becoming more complex and an ever-increasing demand on NHS services falling on fewer available staff, it is no wonder that mistakes and delays arise. According to Running on Empty, the recent survey of almost 3000 nurses by UNISON, half of nurses are working through breaks or beyond their shifts and two thirds felt that they did not spend enough time with patients, thus affecting standards of care. Restricted GP surgery hours also contribute to pressure on the health service, with A&E departments being the worst hit section of the NHS for medical negligence claims.

Although every patient has a right to expect and receive a satisfactory level of care, if things do go wrong, there frequently follows a long and tortuous process to determine the facts of the case and any possible compensation due as a result. Claims in the public sector are dealt with by the NHS Litigation Authority (NHSLA) and involve both a fact-finding exercise and a legal consideration of the matter. This invariably takes time, although the NHSLA states that it has reduced the time taken to resolve clinical claims down to 1.25 years and non-clinical cases to 1.29 years.

Claims against the NHS for medical negligence rose by 10.8% during the 2012/13 financial year, according to the NHSLA. A total of 16,006 patients or bereaved relatives initiated claims against the NHS during that period and the NHSLA set aside £22.7 billion to deal with future claims. This represents almost 20% of the NHS annual budget and is an increase of 22% on the figure set aside for liabilities the previous year, and an 80% increase since 2008.

The NHSLA received 10,129 clinical claims in 2012/13, a rise of 10.8% on the previous year. Clinical negligence cases concern mistakes made by medical and support staff that lead to patient harm. A total of 4632 non-clinical negligence cases were received in 2012/13. These include, for example, cases where patients have been bullied or unfairly treated.

With such a large volume of new claims being reported each year, it is inevitable that some are either spurious or do not justify a remedy. According to the NHSLA, it robustly defends unmeritorious claims, which amount to about 40% of all those received. The NHSLA’s stated aim is to “resolve claims without litigation, be innovative in our claims handling and to use alternative dispute resolution wherever possible. Less than 1% of our cases proceed to a contested hearing.” The NHSLA also works hard to make sure that claimants do not exaggerate their symptoms in assessing any entitlement to compensation when making settlements.

In determining the validity of negligence claims, a key factor is whether the appropriate standard of care has been provided to the claimant and this, in the case of medical negligence claims, has to be measured against a host of professional competence standards. This will frequently require independent medical review and may lead to a challenge by the claimant’s medical experts if agreement cannot be reached. This can be a costly matter for both parties. In 2012/13, the legal costs of solicitors acting for patients were three times higher than those representing the NHS. Patients received £438 million in damages, but their solicitors were paid £196 million in costs. The legal costs of lawyers acting on behalf of the NHS were £46 million. Many claimants rely on “no win, no fee” legal advisors, which allows those legal firms to charge up to £900 per hour if claims are successful.

The NHSLA would like to see the cost of lawyers representing patients capped at the same level as the cost of the NHS lawyers, plus an extra 20%. This would save the NHS £69 million a year according to the NHSLA’s CEO. In the NHSLA’s contingency planning for unresolved clinical compensation claims, one fifth of the £5.8 billion set aside is earmarked to pay claimants’ lawyers, amounting to £1.2 billion.

One aspect of negligence claims, which is significant and still needs to be addressed, is the question of an apology. When a mistake is made that causes harm, often the receipt of an apology goes some way to placating the victim.

Traditionally, there has been a policy of blanket denial when things go wrong, even in the most blatant of cases. Even though this has been on advice not to prejudice potential litigation down the line, the inability to acknowledge fault at an early stage can lead to much increased costs and delays to any awards that may be made. The “duty of candour” that applies in some countries has seen reduced medical negligence claims and, according to a recent report, Building a Culture of Candour, for the Government, should be introduced in the UK. In the report, the President of the Royal College of Surgeons points out that “when things go wrong, patients and their families want to be told honestly what happened, how it might be corrected and to know that it will not happen to someone else.” The Health Secretary supports the principle of a duty of candour and the openness this would bring. However, the matter is not straightforward and an early apology, however proper in its own right, should not act as a bar or impediment to claims being made or defended.

Another avenue for uncovering the truth, which has already been introduced into the NHS, as with many other organisations, is the whistleblowing mechanism. While this provides a third-party channel of communication to disclose facts that might otherwise be covered up, the schemes are still distrusted by many, and some potential whistleblowers feel vulnerable despite the principle of anonymity.

Reducing avoidable harm to patients is a key priority. Minimising the incidence of hospital blunders not only protects patients and their families, but it also saves the NHS money. According to official statistics, in the past four years, more than 750 patients have suffered from the most serious preventable mistakes in hospitals. These are categorised as “never events” — mistakes that are so serious that they should never happen again. Figures from NHS England published in December 2013 show that 25 patients every month are victims of NHS staff blunders, leaving patients either dead or in danger. In a six-month period in 2013, 683,883 patients in England and Wales suffered harm or were exposed to the risk of it through medical errors, and 1834 patients died.

Each time a new study reveals failings by hospital staff in their performance or regime this potentially increases the number of negligence claims by patients who start from the position that a particular risk of harm has already been identified. A case in point is the recent study by Insight Health Economics, which found that at least 1000 hospital patients are dying needlessly every month from avoidable kidney problems linked to dehydration and poor care, which could be overcome by simple checks. In another recent study, Putting Feet First, it was claimed that thousands of diabetics have their feet amputated because of failures in their NHS care which, according to the charity Diabetes UK, varies widely throughout the country. The danger is that once studies such as these are widely circulated it gives actual notice to medical staff of real and foreseeable potential risk, which they must then take positive steps to avoid.