Acting to stop harm: the FCA and Appointed Representatives
It was sad to read a recent report from the Centre for Policy Studies,
The Social Cost of Litigation, which suggests the existence of a culture of litigation in which the fear of litigation has resulted in significant harm to the quality of public services, the experiences of those who use them, and the role of professionals. It is suggested that this fear of litigation also damages the professionalism of doctors, nurses and teachers: it erodes professional autonomy, stifles innovation, leads to defensive practices in both hospitals and schools and encourages greater bureaucracy. To support the authors’ thesis the report refers to NHS Litigation Authority’s estimate that potential liability for clinical negligence is £16.6 billion (March 2011).
The report’s proposed solution is that ‘greedy lawyers and ambulance chasers are reined in’. It is suggested that patients injured by healthcare practitioners should not be able to bring legal claims for compensation following the creation of a no-fault liability scheme moving clinical negligence claims outside of Tort.
The report demonstrates a lack of understanding of the complex issues involved in clinical negligence cases, and fails to offer any solutions to the central problem. Recently I assisted with a case involving a young boy who suffered a catastrophic brain injury at birth as a consequence of the failure by medical staff to identify obvious signs that he was in distress during delivery. As a result of the injury he will need care, round the clock, for the rest of his life. He will need his home adapting, special transport, and equipment such as electric wheelchairs and also therapy from physiotherapy and occupational therapists. Care from nurses, doctors, dieticians, psychologists, psychiatrists, and the involvement of a case manager. His parents’ lives have changed forever, his mother has had to give up her career and realises that she will need to look after him for the rest of his life. Cases like this are not unusual: they are disturbingly common. The real issue that needs addressing is the frequency and consistency of such negligence and its impact on people’s lives, rather than a knee jerk response to the cost of financial compensation. It is essential that specialist solicitors, such as those at Kingsley Napley, are involved to ensure that the correct experts are instructed, sufficient evidence is collated and a sufficient amount of compensation is sought from the defendant to ensure that a patient has sufficient money to provide for his care over the whole of their lifetime.
What the report also fails to realise is that specialist clinical negligence solicitors also act as a filter. They do not issue proceedings following every new enquiry that they receive but spend considerable time discussing the care that patients have received, explaining the NHS complaints process and why a compensation claim may not succeed. Specialist solicitors provide a valuable information source for patients and without this it would increase pressure on the NHS.
The report argues that the risk of litigation forces medical practitioners to change the manner in which they care for patients, so called ‘defensive medicine’. If the authors are correct, then removing the threat of litigation removes an incentive to seek higher standards of care. The link between paying compensation and learning lessons from bad outcomes is broken.
The motive and intention of the claimant also has to be considered. The assumption of the report is that claimants pursue an action solely for the purposes of recovering damages and compensation. The reality is that often claimants who have been injured want and seek justice. They want to know that the practitioner who has acted negligently has learnt from their mistakes and that the same mistake will not occur again.
This report raises interesting arguments but demonstrates a lack of understanding of the complexities of clinical negligence cases and it does not identify a solution in a meaningful way. The proposal to introduce a no-fault system is arguably closing the stable door after the horse has bolted. The report fails to recognise and address the real issue - the negligence. It seems obvious but if the training, supervision of medical staff and general work systems were improved the real problem would be addressed and the number of claims would fall.
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