Recently the Medical Defence Union (MDU) produced an animated short film that highlighted the ‘unsustainable’ increase in awards paid for medical negligence claims that are said to be increasing ‘way ahead of society’s ability to pay’.
In the film the MDU highlights the problem of tax payers' money being spent on compensation claims, money that could be used to fund an additional 40,000 nurses or 29,000 junior doctors. The film goes on to quantify what the MDU considers to be a 'fair' amount of compensation for claims for loss of earnings. It argues that a cap would standardise the amount that is paid out per claim, stopping disproportionate or large pay-outs. The MDU suggests that a claim should never exceed three times the national average annual salary, which is currently around £26,500.
But is this really fair? Can that sum adequately compensate someone who has worked hard in a job that pays over the national average and who has then lost all their prospects, because of an irreversible injury caused to them by negligent treatment?
Let's take the case of a General Practitioner. He/she has studied through medical school for 7 year and has qualified to earn around £74,000 per year. Is it "fair" that they receive a single one-off settlement of £79,500 (three times the national average) after suffering a life changing medical blunder which has left them unable to ever work again?
The MDU's definition of 'fair' is clearly nothing of the sort. Every case needs to be assessed on a case by case basis and valued according to the injuries and losses that the individual has suffered. Such an award would not be just for the GP who suddenly cannot pay her rent or mortgage or bills or even support her family. This is particularly true when considered in the context of the fundamental principle of the law of negligence in this country; an award of compensation is meant to put the victim back in the position they would have been but for the accident.
It is important to remember that clinicians, nurses and other healthcare professionals are trained, re-trained, and tested to ensure that they have the skills they need to do their jobs. The vast majority are highly professional, skilled and compassionate practitioners who spend their lives caring for their patients. Nevertheless, it is true that many of the injuries that we see are caused by negligent mistakes. In other words, mistakes that are so inexcusable that no reasonable, responsible clinician can defend them.
In 2014, I commented on the £26 billion that was set aside by the NHS litigation authority for future medical negligence claims. At that time the Health Secretary Jeremy Hunt revealed that:
"1,000 patients a month are dying needlessly in NHS hospitals because of staff blunders."
In my article I quote Mr Hunt who went on to promise reforms to bring an end to a “cover-up culture” which is risking lives. He discussed the NHS' newly proposed 'Duty of Candour' which imposes a duty on hospitals to volunteer information about mistakes, and which proposes a fine of up to £100,000 on hospital that are not able to prove that they have been upfront about cases of negligence.
Mr Hunt said:
“Being open and learning from mistakes is crucial for improving patient care. The NHS is a world class health service, but when mistakes happen it is vital that we face them head on and learn so they are never repeated. This sends a strong message that covering up mistakes will not be tolerated.”
The answer to the question of how to reduce the amount of money paid out in negligence claim is to improve the quality of the care that patients receive; it is not an answer to reduce the sums paid to injured people to unjust and unrealistic levels.
Organisations like the MDU, which is of course an insurance company responsible for the payment of compensation, will always campaign for reduced levels of damages. Their interest in paying a "fair" sum to compensate injured people is always going to come second to their concern to ensure that they are as profitable as possible. Our society should not decide what is a fair and just award of compensation by reference to averages or according to the financial interests of the very party obliged to pay those awards. Rather, we must undertake a careful analysis of the realistic losses suffered by the injured person, and ensure that they are returned, as far as possible, to their pre-injury position.
The NHS is and always will be one of our proudest achievements, not just from a medical perspective, but also as a world leading example of social justice. The UK is one of the only countries in the world with a publicly funded healthcare system that actually works. We should concentrate on making the institution better, not on punishing those injured as a result of unacceptable mistakes.
I understand that for some suing the NHS is feels uncomfortable and that diverting funds from Trusts' budgets to meet the cost of insurance is counterproductive. But consider the flip side: if you were injured as a result of incompetent treatment, NHS or private, and were unable to work or support a family as a result, is it not right that the insurance companies who exist for exactly this reason, should step in to support you?
There is no easy answer but in my opinion compensation for life changing injuries should reflect the true financial cost of lifelong care and lost earnings. This should include providing access to therapies and providing accommodation adapted to restore as much independence as possible. I suggest that these basic principles must form the foundation of any "fair" award.
By Senior Associate, Jonthan Zimmern
A barrister in our medical negligence and personal injury department, Jonathan Zimmern has been dealing with complex and high value cases for over 7 years, acting for those injured through medical negligence or personal injury accidents.