Every incident of avoidable patient harm is deeply distressing for patients and families, has multiple negative effects for healthcare staff and organizations, and consumes resources in investigation and redress. The national healthcare system is therefore increasingly focused on risk management—not least as clinical negligence costs are representing a major threat to the viability of the National Health Service (NHS): the provision for liabilities arising from claims for all financial years covered by all NHS Resolution schemes has increased by £0.7 billion from £83.4 billion to £84.1 billion. (opens a new window)
Meanwhile, the National Audit Office (NAO) has said that the cost of clinical negligence claims is rising at a faster rate year-on-year than NHS funding (opens a new window). The rise in clinical negligence costs is due to increases in average claimant damages and legal costs, and to a higher volume of claims. The overall cost of claims increased by more than four times between 2006-2007 and 2016-2017. (opens a new window)
The medical professional liability (MPL) claims situation has been exacerbated recently by COVID and associated economic strains. Unfortunately, calls for legal immunity for clinicians during the pandemic were ignored. This situation creates a potentially challenging environment for medical malpractice defence as the court system comes to terms with decisions made under unprecedented circumstances. This article explores trends within the MPL industry in England in both the private and public sectors. When doing so, it is in the context of the fact that the NHS provides free care to all, and ranks 18 out of 191 countries for provision of healthcare—according to the Healthcare Access and Quality Index 2021—while achieving top ranking for affordability compared with 10 other high-income countries. (opens a new window)
Rising claims volume and costs
The increase in claims volume and the cost in claims can be traced to multiple factors. These include: A rising compensation culture: Medical malpractice systems in and of themselves can be identified as a force in rising claims. The current system in England—which is similar in many ways to the American system—differs from no-fault systems such as New Zealand’s system, which includes a no-fault compensation scheme for medical injury and a separate medical professional accountability process.
No win, no fee plaintiff’s lawyers: The continued existence of no win, no fee lawyers and the principle of one-way cost shifting, introduced in 2013, whereby claimants in a medical malpractice claim who win receive their costs—paid by the defendant. However, if the defendant wins, the claimant does not, by contrast, have to pay the defendant’s costs.
A big jump in damages awards: The increase in damages is linked to various factors.
In March 2017, the personal injury discount rate changed. Although the personal injury discount rate was reset in July 2019 to try to curb the rise in damages, the reset (from -0.75% to -0.25%) was less than the initial increase and means damages are still very high.
A recent case decision ruled that where new accommodation has to be purchased as a result of injury, the injured claimant is entitled to the capital cost of the special accommodations minus the value of the reversionary interest.
Another ruling stipulated that the cost of private education is now recoverable.
Systemic NHS issues: There are more than 100,000 staffing vacancies across the NHS in England alone. In addition, many buildings are in a poor state of repair, facilities lack proper equipment such as intraoperative CT scanning, and there are information technology challenges. All of these issues have been exacerbated by COVID-19.
Informed consent
Consent is pleaded in the majority of cases. Under current precedent, doctors must disclose any risk to which a reasonable person in the patient’s position would attach significance.
That means doctors must share all material risks, as well as any risks to which they believe individual patients would attach significance. The standard of consent documentation and the credibility of witnesses are key battlefield in this area of MPL. Cases have gone both ways since this ruling.
There is a large body of opinion that only personalised video consenting tools will suffice in order to assure that patients receive compliant consent advice in line with this precedent.
Delayed diagnosis
This allegation appears frequently in malpractice claims and the case outcome depends on expert evidence. In Jarman v Brighton and Sussex University Hospitals NHS Trust [2021], the hospital was charged with failing to promptly diagnose Cauda Equina Syndrome (CES) (opens a new window). The claim was supported by expert evidence that the claimant should have been referred for either an emergency scan or a scan within three days of presenting to the hospital.
However, the defendant’s expert noted that there was a reasonable and responsible body of clinicians who favored a scan within 14 days, while instructing her to return to hospital if her condition deteriorated, based upon the absence of objective indicators of CES.
Ultimately, the judge rejected the claimant's claim on breach of duty. The case highlighted the importance of giving clear instructions for onward referral—for example, if a scan is needed urgently or as an emergency and within what time frame and focused on the importance of experts being able to support their assertions convincingly.
Missed diagnosis and telemedicine
Claims based on allegations of missed diagnosis are prevalent given the volume of remote consultations during the pandemic. The inability to physically examine patients, to read their expressions and assess them as they walk into the examination room, and to confirm or correct visual observations are all compromising factors.
There has been an increase in incidents where the symptoms were presumed to be COVID, could not be checked manually, but were actually other red flag indications. These are situations that might have been picked up during an in-person visit outside of a pandemic state of emergency.
Trends point to continued rising costs and frequency
Access to specific private healthcare claims information amongst specialties is limited due to the plethora of indemnity organisations that exist. However, annual reports from some of medical defence organisations appear to confirm the upwards trend in complaints handling. (opens a new window)The Medical & Dental Defence Union of Scotland (which also conducts business in other U.K. countries) stated that the time spent delivering medical legal advice to doctors increased by 29% over the prior year. Of the 10,000-plus calls handled by the organisation’s in-house medical team, the time taken to deliver advice increased by nearly one third in 2020 to 1,742 hours (note some of these will refer to Scottish claims). (opens a new window)
In 2019 the Medical Defence Union paid out £83.2 million as compared with £77.0 million in 2018 in discretionary indemnity claims and legal costs, (£1.2 million relates to Irish members’ claims) (opens a new window). Lockton has experienced unprecedented levels of claims and calls during the past year from a wide range of clinicians and healthcare organizations.
Within the NHS, clinical negligence claims increased by 9.35% in 2019-2020. (opens a new window)A comparison of the prevalence of claims with their values allows a different picture to emerge. Obstetric claims continue to dominate claims costs, with continuing increases in claims values, representing 50% of the total value of all clinical negligence claims received, 69% of the incurred cost of harm, and 72% of the total indemnity provision. (opens a new window)
There have been 11,682 new clinical claims and reported incidents recorded in 2019-2020. (opens a new window) Interestingly, and typical for the approach to litigation in England, of the 15,550 claims resolved in 2019 2020, 71.5% were resolved without court proceedings, 27.9% with proceedings and a mere 0.6% at trial. Overall, the proportion settling with damages increased by 1% compared to 2018-2019. (opens a new window)
It is clear from all this information that something needs to be done to alleviate the pressure in terms of cost (let alone the impact of claims on the long-term sustainability of the NHS in particular). Various solutions have been considered including the concept of fixed fees.
Fixed fees in clinical negligence cases
Following a government consultation in 2017, a Civil Justice Council working group has been considering the proposal to introduce fixed recoverable costs (FRC) in clinical negligence cases for claims of up to £25,000 and came up with some draft quotes on a sliding scale in October 2019. (opens a new window) Unfortunately, the group was not able to make any material progress on the level of experts’ fees or on After The Event premiums.
There was also a suggestion that mandatory neutral evaluation would be used to resolve matters, which is a flexible approach to dealing with disputes used with great success and at far less cost in areas such as construction litigation.
A FRC regime will provide both parties with certainty as to the maximum amount they could be liable for and can ensure proportionality on costs. In time FRC may be extended to higher-value cases, thus reducing further costs dramatically.
What’s next?
The MPL market in England in 2021 was defined by COVID-19. The next few years will likely be dominated by COVID-related claims. These claims may be directly related to COVID itself or claims brought due to the negative impact of COVID on healthcare providers, exacerbated by the resulting backlog in the healthcare system.
The British Medical Association estimates that between April 2020 and May 2021, there were 3.63 million fewer elective procedures and 23.67 million fewer outpatient visits. (opens a new window) Cancer treatments were also severely affected during the first wave of COVID. With the Delta variant surging in the U.K. this summer, there is hope that care for non-COVID conditions will not be interrupted again.
Given the stark impact of COVID, the healthcare service cannot afford—literally and figuratively—to continue in the way it has in respect of the cost and prevalence of claims. This is before we take into account the severe emotional toll that being involved in litigation has on healthcare professionals— individuals who may already be at a breaking point as it is due to the strains of working during the pandemic.
Individual healthcare organizations, whether public or private, need to embrace a no-blame culture, where staff learning from and engagement in incidents is part and parcel of daily clinical life; an FRC regime needs to be introduced; the system needs to be challenged to correct the inequity of not allowing clinician defendants who prevail to be awarded litigation costs; the discount rate should be amended further; and investment in the correct training, equipment, systems, and infrastructure must be made. We will wait to see how many of the required changes occur.
