MDU’s 6-point plan to reform the clinical negligence system: a claimant lawyer’s response

Last week the Medical Defence Union (MDU) unveiled a 6-point reform plan to save the NHS from spiralling medical negligence claims.  This trend has nothing to do with  deteriorating clinical standards and everything to do with recent legal market developments  the MDU believes.

Granted we are in an unusual environment at the moment with a negative discount rate producing unprecedented awards of damages. But kneejerk reactions should be avoided. The MDU’s  proposals are idealistic and unworkable. They would strike through decades of legal history and jeopardise the principle that claimants are entitled to full compensation for their injuries.  

My  view is that careful tweaking of the litigation system and a change of emphasis to promote early mediation would be wholly more effective.

Here's why:

1. The MDU calls for the Law Reform Act 1948 to be amended to require claimants to have future care provided by the NHS rather than the private sector.  This debate is not new and the MDU's proposal is too simplistic.  Any claimant medical negligence lawyer experienced in dealing with catastrophic injury claims will attest that local NHS and Social Services provision is inadequate and inconsistent, rendering private provision essential in many cases.
2. The MDU argues that personal injury defendants should be allowed to buy health and social care from public providers. If defendant insurers start a bidding war for limited state resources it would create exactly what the MDU argues against – a two tier system to the detriment of patients who have sustained injury by a non-negligent means.
3. The MDU says the same care should be available to all patients with the same condition, however caused. They suggest an independent body sets standard packages of health and social care based on patients' reasonable needs. But who would form this independent body? And do we really want a checklist / bracket type approach rather than assessing individual needs from first hand clinical experience?
4. The MDU calls for limitation laws  changes  to avoid claims being brought as long as "40 years after the event".  Although theoretically possible,  in fact such cases are  rare.
5. The MDU wants future loss of earnings limited  to three times the national average annual wage (c£86,000 pa).  In practice this would have little impact.  Recent high value settlements approved by the Courts have involved child claimants with no track record of past income.  Net annual loss of earnings claims seldom approach the level referred to by the MDU.
6. Finally, the MDU argues that there should be a personal injury discount rate that reflects the way damages are invested and spent. This is already what the Lord Chancellor will be required to do during his 5-yearly review  thanks to the Civil Liability Bill.

In addition the MDU calls for a reduction in lawyers costs within the medical negligence system. Isn’t NHS Resolution already addressing this with its excellent work to promote mediation of negligence disputes?If parties can conclude claims early they avoid a lengthy, and expensive, litigation process which has such a draining effect on the public purse.

The bottom line is that there are two critical changes which will help stem the rising NHS negligence bill. The first is the NHS improving its learning from mistakes and the second is greater collaboration with claimants when mistakes do occur to allow for swifter case progression and resolution.  The rest is but window dressing and misses the wood for the trees.

This article was first published by The Times on 29 November 2018