No-fault compensation in clinical negligence claims – Our views
February 3, 2022
Former health secretary Jeremy Hunt has questioned whether clinical negligence lawyers are blocking vital reforms because the status quo is too lucrative to change.
Mr Hunt, the chair of the health and social care committee, made his remarks during a two-hour hearing earlier this month on the merits of non-adversarial systems in other parts of the world.
Responding to Mr Hunt’s comments, barristers from Exchange Chambers’ clinical negligence team have provided their views on no-fault compensation.
“The real truth is that clinical negligence litigation tends to be more costly than other forms of personal injury claims for at least two reasons.
“First, the NHSR and its predecessors, in my opinion and based on my 30 years’ experience as a QC doing nothing but claimants’ brain and spinal injury claims, is a very poor litigator; I acted on three finalised cases last year where hundreds of thousands of pounds of costs were spent unnecessarily, and where millions of pounds of compensation were given away without proper assessment.
“Secondly, the medical profession (and lawyers are doubtless the same) is inordinately defensive. They are supported by supposed experts who appear to argue for insupportable practice, and who help the defendant to prolong the defence of genuine claims, doubtless hoping that severely injured claimants will give up hope and abandon their claims, or accept vastly reduced and inadequate compensation.
“It is also worth re-stating the obvious, which is that, in this country, the purpose of compensation is to remedy the negligence, ie carelessness, of a medical clinician, and to reinstate the claimant in as close to his or her pre-negligence position as possible.
“In cases of severe injury, that is likely to mean new accommodation, extensive therapeutic help, support day and night, specialised transport and equipment, and carefully arranged holidays.
“That sort of package comes at vast expense, and it is universally acknowledged in the clinical negligence and personal injury world, on both sides of claims, that the State does not provide anything close to the real needs of the injured person – that’s why we see so many multi-million pound-claims reported.”
“Whist a non-adversarial no-fault compensation system would remove the stress of proving fault from the victims of medical accidents and might mean speedier resolution of claims and enhance an open culture of disclosing errors and learning from them in the medical profession, the experience in this country gained from the CICB/CICA schemes leads me to have serious reservations about any Government initiative in the field of clinical negligence.
“The limits imposed on the recovery of compensation within the Criminal Injuries Scheme, lead me to worry that any new scheme would have inadequate funding and set levels of compensation at too low a level of recovery.
“In addition, rights of appeal in any ‘ex gratia’ system I anticipate would be seriously curtailed. I would also be concerned about the eligibility criteria for making a claim. Without any detail of such a system I believe lawyers are right to be sceptical of the prospects for victims of medical accidents achieving justice in such a system.”
“There is nothing new in the government attempting to blame lawyers for the cost of clinical negligence claims.
“Looking to reduce costs by comparing our tort-based system to no-fault compensation schemes in other countries also misses the point.
“Under our current system, compensation is only paid to those who succeed in establishing not only breach of duty but the all-together more challenging and often complex issue of causation, particularly when the claimant suffers life changing injuries and requires lifelong care, taking into account the fact of their pre-existing reasons for requiring medical attention.”
“I come from a family of committed medical professionals. I still genuinely believe that the current system of independent access to a Court and the right to bring a claim for clinical negligence works in the best interests of patients who have been badly let down.
“My experience is that patients tend to turn to the law only once the internal systems for redress have let them down or that their let-down was so serious that they cannot have confidence in any system other than an adversarial one.
“I fear that a system of no-fault compensation will lead to an erosion of patient rights and a reduction in the damages that very seriously negligently treated people will need to ensure a reasonable quality of life.
“No-fault compensation is unlikely to be in the long-term interests of the public. Other professionals, lawyers, pilots, accountants stand or fall on their reputations and the standards they apply to their work. Doctors and nurses should be no different.”
“The suggestion of self-interest by lawyers is both unfair and unhelpful, if unsurprising.
“Since October 2014, all NHS providers in England have been under a legal obligation (‘the duty of candour’) to identify and apologise for unintended or unexpected events, and to take reasonable steps to prevent a recurrence.
“All of the professional regulators are emphatic and clear in their advice that complying with the duty of candour does not mean that a practitioner is accepting legal liability for what has happened, nor that he or she is accepting any personal responsibility for the mistakes of others or for systemic failings.
“On this basis, there is no fair or logical basis to criticise lawyers for impeding the investigation of mistakes or stopping NHS providers from learning from these events and improving patient safety. That is the law of the land and it should be followed long before a lawyer might be turned to by a patient or family for answers that should have been given, but were not forthcoming voluntarily.
“The fact that serious duty of candour failings remain commonplace simply represents a failure by the Department of Health, which was under Jeremy Hunt’s stewardship for almost 6 years, and NHS leaders.
“Making the NHS much safer for patients is a readily achievable aim, with better leadership and improved resource allocation and funding.
“Removing access to justice would be unfair and counterproductive. Most people only turn to lawyers out of desperation, when the system has already failed them in multiple ways.
“Moreover, any fundamental justice reform should be looked at independently by the Law Commission or similar, not by those responsible for repeated failure to address the underlying problem.”
“The current adversarial system is a significant driver towards excellence in the healthcare system, with claims frequently identifying and highlighting omissions and errors missed by the hospital’s own investigations.
“A significant proportion of the costs incurred could be avoided were NHS Resolution to engage constructively in negotiation and mediation at an early stage; it is unique amongst insurers or claims handlers in the obstructive and aggressive approach taken throughout claims before folding shortly pre-trial, thereby significantly increasing the costs incurred by both sides.”
“A ‘non-fault system’ might sound attractive but AvMA (and others) have raised legitimate concerns. The administrative cost of such a system is an obvious one. Another is the availability of a cost saving for the NHS within the current system if they simply changed their approach to litigation. These cases drag on and on with questionable denials and then settle at the last minute. Just this year I have settled two cases at JSM in which the alleged breaches were old (in 2010 and 2015 respectively), we had trials on the horizon (7 days in February and 5 days March) and we had never had an offer from the defendant. These severely injured claimants only ever want fair compensation – and if we had more engagement and realism from defendant solicitors at an earlier stage, the costs bill to the NHS would be significantly reduced.”
Exchange Chambers is sponsoring AvMA’s 32nd Annual Clinical Negligence Conference which is taking place on 24 and 25 March 2022 at the Royal Armouries Museum in Leeds. Gerard Martin QC and Matthew Stockwell from Exchange Chambers’ clinical negligence team are also speaking at the event.