Fault lines: resolving clinical negligence claims.

The cost of clinical negligence claims against the NHS in England rose to £1.259bn ($1.9bn, €1.5bn) in the last financial year, and the number of new cases in 2012-13 climbed by 10.8% to more than 10 000. The year before, in 2011-12, the bill breached £1bn for the first time after a 30% rise in claims the previous year, forcing the UK government to pump in an emergency cash injection. The figures highlight the ballooning cost of resolving medical injury claims through the traditional tort system. The number of claims is rising, payouts in the most serious cases are getting bigger, and the legal costs remain stubbornly high. Is there a better, more cost effective, and fairer way to compensate patients who are harmed during medical treatment? In at least one of the UK’s four countries, the powers that be think the answer is yes. Scotland is considering a no-fault compensation system for medical injuries, in line with the recommendations of a government appointed review group. In England, no-fault compensation has been debated for decades but has never got off the ground. In 1978 the Pearson Royal Commission rejected the idea of a no-fault scheme for medical injuries, arguing that the scope would be hard to define. The issue surfaced again in 1997, when the incoming Labour government was considering former Treasury permanent secretary Peter Middleton’s recommendation for a no-fault scheme. Middleton contended, “It makes very little sense to have an increasing amount of time and money from the health budget extracted in legal fees rather than patient care, and to engage in a set of arrangements where legal professionals can earn more money from public funds than health professionals.” But Labour decided not to take the idea forward. In 2003 the then chief medical officer for England, Liam Donaldson, recommended a no-fault scheme for birth injuries only, in his paperMaking Amends.But even this limited attempt to cut legal costs for the most expensive category of claim was not taken up. And in 2011 the House of Commons health committee again rejected no-fault compensation for England and Wales. The committee echoed the concerns of critics over the decades that such a scheme, although it would save on legal fees per case, would lead to more claims and reduced levels of compensation for the most needy, while probably costing the NHS more than the current system. No-fault schemes have existed in New Zealand and Sweden since themid 1970s and in Norway, Denmark, and Finland since the late 1980s and early 1990s. Patients claiming compensation under the schemes are not required to prove that hospitals or health professionals were negligent, as they would be in the courts. But they still have to prove that the treatment caused their injury. And under the existing schemes, payouts are smaller than those received by litigants in the UK for equivalent injuries. The expert panel in Scotland, chaired by Sheila McLean, emeritus professor of law and ethics in medicine at Glasgow University, recommended a scheme based largely on the Swedishmodel. Payments would be lower than under the current system, but claimants would have a guarantee that their needs would bemet by lifelong care provision by the state. They would retain the right to litigate, but any financial award they received from the no-fault scheme would be deducted from the payout achieved by litigation. Responses to the Scottish government’s consultation highlight fears that the proposed scheme would encourage many more claims and end up costing more than the current system. The government says it will publish its response to the consultation soon, including its proposed way forward. BMA Scotland, which supports no-fault compensation in principle, says it would back a scheme that improved on the current system “provided it does not increase costs to the NHS and direct money away from patient care.” TheMedical Defence Union has doubts about the affordability of the scheme and asks, “Will the public believe lower compensation payments, and presumably a requirement to rely entirely on NHS provided treatment and care, are preferable to the existing system?” The Medical Protection Society welcomes the scope for greater openness between patient and doctor but calls for a pilot scheme to test the workability of no-fault compensation. Support is stronger for a no-fault scheme for serious birth injuries, if the full scheme fails to get the go ahead. In the late 1980s two US states, Florida and Virginia, introduced no-fault schemes for serious neurological birth injuries only.