Rising clinical negligence payouts reflect a lowering of NHS standards

One of our most venerated national institutions is in crisis. Once the envy of other nations around the world the NHS now faces criticism from all quarters, with health professionals and patients alike calling for drastic changes to turn around an overburdened system that is driven by commercial targets and operates in a culture of silence. Whilst cuts to funding for all public services have been made as part of the austerity measures, how can we protect the health of our nation and restore confidence in the NHS?


Certainly not by trying to divert attention away from the consequences of the funding cuts by blaming the lawyers who help people bring claims. Yes, medical negligence claims have increased but, with experts agreeing that a lack of funding has contributed to a reduction in care standards and consequent rise in litigation, surely the focus should be on raising standards through better transparency, a willingness to accept responsibility and an active commitment to making real changes. A culture change is vital if we are to ensure that preventable mistakes and lapses in care are kept to a minimum.


Last year the UK public was shocked when the failings at the Mid-Staffs NHS Foundation Trust were implicated in at least 1,200 patient deaths. Police have recently revealed that they are now reviewing a further 2-300 deaths at the Trust where poor care may have been a contributory factor. It has become apparent, though, that failings in care are not necessarily limited to these high profile scandals and that problems in the NHS are more widespread.


In the last four years, there have been over 750 reported ‘never events’ in English hospitals. These are mistakes such as operating on the wrong body part or leaving medical instruments inside a patient: serious mistakes that should never happen. Moreover, recent reports show that there is an increased chance of an operation going wrong on a Friday. And, the on-going squeeze on the health budget has been highlighted as one of the key reasons for the spike in waiting times. Is it any wonder that even the chair of the Royal College of GPs has warned that GP surgeries and hospitals are “heaving under the workload” putting the whole NHS at risk of grinding to a halt?


After the shocking revelation recently of the cover up within the Care Quality Commission itself, of an assessment report of Furness General Hospital, public confidence in and goodwill towards the NHS as a caring organisation has been deeply affected. However, it would be sad – and counterproductive – if the pendulum swings from one extreme to another.


Where many people, proud of their health system, may have considered it ‘wrong’ to sue the NHS in the past, the tide of public opinion has turned. It is predicted that the revelations that the system is not infallible and has systematically covered up its failings, will stimulate more medical negligence claims. This is welcome as it makes people and organisations accountable for their mistakes, facilitates change and can help those who have suffered achieve some kind of compensation for what happened to them. However, the concern is that we will see a raft of less convincing claims that clog up the system. In reality, proving medical negligence is complicated and requires significant technical legal knowledge, experience and empathy.


When a medical accident happens or someone is injured through lack of care, these are life-changing events. There is no justice for someone whose baby is severely disabled because of mistakes in the delivery room. But having someone accept responsibility and pay compensation can help in some way towards making the difficulties they will face a little easier, including helping them to pay for care or specialist equipment.


As specialist medical negligence lawyers, we want to encourage learning within the NHS. We want explanations for our clients, an apology – if possible – and to help encourage a more caring NHS so that mistakes are not repeated.


It is positive that the ‘powers that be’ are realising that the problems within the NHS cannot be swept under the carpet any longer. We are heartened to hear both government and the CQC highlighting changes such as more protection afforded to whistle-blowers, more weight given to patients’ views and encouragement of early admission of liability through the Duty of Candour proposals as well as tougher regulatory controls on how hospitals are inspected. This is music to our ears but we wait to see how effective these measures will be in practice.


The NHSLA’s proposed fixed costs pilot scheme is another initiative that we will be watching with interest. Obviously attempts to cut costs within the legal sector are good in principle but any savings should be made with the primary objective in mind of not putting patients at risk as a result. One of the key areas where legal costs can be reduced is by medical organisations taking responsibility sooner rather than later, to reduce the time a claim takes to pursue. Streamlining the claims process and introducing fixed costs will not reduce the costs to the NHS and taxpayer unless culture change reduces the frequency of medical accidents.


The real costs to society of the problems in the NHS are the costs of its failings and it is the prevention of these that should be the primary focus if our previously admired health system is to recover.




Posted 17th July 2013 | Posted in News,Uncategorised