Counting the cost of mistakes in healthcare – human, financial and political

The scale of the financial provision required for clinical negligence claims, in particular birth injuries, brought against the NHS, has hit the headlines again. For 2019/2020, NHS Resolution needs to collect £718.7 million from its member trusts, just to pay out on maternity cases.

The big numbers referenced by the BBC recently following a Freedom of Information Act request are in fact, readily available to view on the NHS Resolution website, as are the positive steps it is taking to ensure that the biggest claims, i.e. adverse birth outcomes are reported and investigated early, with incentives for trusts to ensure that learning is identified and implemented. All cases are reviewed from a patient safety perspective; with the aim to reduce risk of recurrence and thereby the number of claims.

The factors that drive claims are multiple and varied and for those ‘in the business’ (whether instigating, advising or defending) it is recognised that improvement cannot come fast enough. An avoidable clinical error, blighting not only a patient’s life but that of their family, friends and colleagues as well as that of the healthcare team that were involved in the adverse incident warrants a response which is prompt, fair and transparent achieving a resolution which also reduces the scope for repetition.

There is great work being done to drive improvement, such as Getting it Right First Time, but clearly much still to be done. The pace of change in healthcare, as in all other areas, means that whilst new techniques bring improvements for patients e.g. via day patient treatment rather than being admitted as an inpatient different risks emerge that create the scope for unforeseen errors and, by association, claims. As ever, technology brings solutions, but also new problems and exciting as medical advances are, the human factor and the scope for errors in communications in particular remains a huge challenge.

The lack of answers for patients (a theme picked up in the BBC article) should not be an ongoing issue. The duties on healthcare providers and practitioners to be open via the Duty of Candour, a professional’s regulators and the oversight by bodies such as the CQC should provide rigour during investigations of adverse outcomes/near misses. The complaint route adds another avenue and (should there have been a patient death) the involvement of the coroner is another route to get answers.

As for tackling the cost of paying out on claims, that is a much bigger issue, trying to limit the scope of legal costs involving principles such as access to justice as well as a range of financial interests (as the resistance to introduction to fixed recoverable costs has demonstrated in the clinical negligence arena ).  Various governments have tried to balance the competing interests in this area and failed.  Likewise, the approach to how cases are actually valued is a hot potato, the re-setting of the Discount Rate by the Lord Chancellor in February 2017 more than doubled the value of many claims overnight, whilst the re-adjustment in August 2019 did little to appease those who felt the jump was unmerited.  Many reference a need for legislation to tackle the scale of the problem, but it remains to be seen if there will be the time and appetite for this parliament to address it and, dare I say it (?), the skill to get it right!


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Written by Vicki Swanton, partner and head of healthcare at BLM

vicki.swanton@blmlaw.com

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