Medicine, Malpractice and Misapprehensions

V.H. Harpwood

• Publisher: Routledge-Cavendish
• Year: 2007
• Print ISBN: 9780415428095
• eBook ISBN: 9781134089420
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

Analyzing the level of claims for clinical negligence in the light of the most recent trends and discovering whether there is indeed a litigation crisis in healthcare, this book is a topical and compelling exploration of healthcare and doctor-patient relationships.

The author:

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• identifies and analyzes the growing pressures on doctors in modern society, placing their role in context
• explores some of the myths surrounding media claims about malpractice
• considers the practice of 'defensive medicine' and the difference between defensive practices and sensible risk management
• examines external pressures, such as political interference with clinical practice in the form of target-setting and what might be described as a culture of creeping privatization of healthcare.

Covering the topics of medicine and the media and the causes of occupational stress among doctors, this volume is a must read for all students of medical law and medical ethics.

Chapter 1

Data, accuracy, compensation and error

What should we believe?

There is an indisputable need to inform the public about medical errors, and consequently there is no shortage of media coverage of mistakes and scandals in healthcare. The high profile given by the media to this matter has raised the political temperature, and medical malpractice has become a political issue. The history of the rise in the volume of claims will be outlined in this chapter, and in the chapter that follows the statistical information will be considered against the background of a growing consumer rights culture, multifaceted changes in society and medical practice, developments in the litigation process and case law, and the developing National Health Service (NHS). However, despite a general public understanding, and indeed a belief among healthcare professionals, that the number of claims involving medical error is rising, some assertions have been made that perceptions of a litigation crisis in the UK healthcare system are unfounded. An inquiry into the truth or otherwise of such matters will form the central theme in Chapter 3.

The increasing volume of claims in the twentieth century

In the three decades immediately following the Second World War there was a gradual but steady increase in claims against medical practitioners, and by the mid-1970s there was a rapid acceleration in that trend. By 1978 when the Pearson Report¹ on personal injury compensation was published, there were an estimated 500 claims against the NHS annually. There is considerable evidence following that finding that the volume of claims and the cost of defending them increased greatly during the last decades of the twentieth century² and into the new millennium. Peter Cane roughly estimated the rise in the number of clinical negligence claims between 1977 and 2005 as a 125-fold increase since 1977, allowing for inflation,³ commenting:

No other area of tort litigation has grown anything like this extent in the past 30 years.

In fact, as will be seen, the level of claims had risen significantly higher than that rough estimate – by as much as 1,200 per cent between 1978 and 2006.

By the late 1980s, litigation had become a luxury that only the richest members of society could afford, and was well beyond the financial means of the majority of people who might have wished to bring claims for medical negligence, though legal aid was available to the poorest. Yet despite many practical difficulties faced by claimants, and although many were doomed to fail in their attempts to achieve redress⁴, the number of clinical negligence claims against the NHS rose steadily throughout the last two decades of the twentieth century,⁵ reaching an estimated figure of between 5,419 and 6,979 by 1990–91.⁶

In 1989, the last year of the old system of funding the defence of claims for clinical negligence, the Medical Defence Union (MDU) paid almost £30 million in damages and costs, more than twice what was paid in 1985.⁷ The Medical Protection Society (MPS) recorded similar trends and noted that costs of claims alone had quadrupled between 1976 and 1985, with the number of claims against doctors increasing from around 1,000 in 1983 to more than 2,000 in 1987.⁸ A single case⁹ was settled by the MDU for just over £1 million, a sum that was 97 per cent greater than the amount paid in the whole of 1975 in damages and settlements. These increases were accompanied by corresponding rises in subscription rates for members of the defence organisations and led to the introduction of NHS indemnity when the healthcare system was restructured in the early 1990s.¹⁰ The defence organisations continued to handle claims against general practitioners (GPs) after that time, and the MPS reported that negligence claims against GPs had increased 13-fold between 1989 and 1998.¹¹ In the years between 1993 and 1998, the MPS has spent nearly £7 million dealing with cases that were subsequently abandoned, though that money could not be recovered from the claimants. It is not surprising that from 1999, all GPs and dentists were required to have defence cover.

By the beginning of the 1990s it had become apparent that there was an urgent need for reform of the way in which patient dissatisfaction was handled within the NHS. Complaints and claims are closely related and are usually managed in the same managerial departments within NHS organisations. At the same time, the main stimulus for the reform of complaints systems lay in large-scale structural changes in the delivery of healthcare introduced by the Conservative Government at the beginning of the 1990s, and in the realisation that the current complaints systems were so complex and outmoded as to be of little practical value. The demand for change was also driven by a variety of other related factors, including a shift of emphasis in the centuries-old relationship between doctors and patients, generated by the new climate of consumerism in healthcare, and what was seen as a developing compensation culture that had led to a significant rise in the number of claims against the NHS.¹² It was thought, rather naively, that by encouraging complaints, many potential claims would be defused.¹³ Paradoxically, this does not appear to have happened, as claims continued to escalate after the new NHS Complaints System was established in 1996.

Sources of data

There has been, for a variety of reasons, some considerable complexity in the process of reporting and analysing the number of claims for negligence in healthcare in the UK. Information was gathered on the number of claims for medical negligence for the Pearson Commission,¹⁴ which reported in 1978, though its main remit concerned road traffic accidents. Thereafter, the most reliable sources of data were the doctors’ defence organisations, the MDU and MPS, though these organisations were concerned only with claims against doctors (and in their related branches, dentists), and did not record data relating to other healthcare professionals except in so far as it affected claims against doctors. Research studies, most of excellent quality, though limited in scope, also provide information about the picture in the 1980s and 1990s.¹⁵

After the introduction of NHS Indemnity in 1990, it was no longer a relatively simple exercise to obtain precise information on the current level of claims in the NHS (let alone those brought against practitioners in the private sector), because of the devolved nature of healthcare in the UK and because for some time no single organisation was responsible for collating the final figures for all claims against GPs and other healthcare professionals. There is only limited information concerning clinical negligence claims between 1990 and 1996, but some figures can be found in official reports subsequently produced, relating back to the earlier claims period, and in circumscribed research studies.¹⁶

It is, however, possible to find detailed records of the cost of clinical negligence claims against NHS Trusts since 1996. The National Audit Office,¹⁷ which reviews public spending in the UK on an annual basis, has obtained data since that date that give an indication of the level of claims against NHS organisations, and separate figures are collected for Northern Ireland, Wales, and Scotland. Figures produced by the National Health Service Litigation Authority (NHSLA) in England since 2002 relate only to its own expenditure and estimated future liabilities. In 2003, the Government produced a consultation document entitled ‘Making Amends’. Figures quoted in that report relate to the entire NHS, but only cover the years before 2003.

Answers to parliamentary questions are also useful sources of information, as they are the product of research undertaken with the co-operation of the NHSLA¹⁸ (although that organisation deals only with claims in England).¹⁹ The NHSLA records claims in respect of which a pre-action protocol letter has been received, and of course the figures quoted by the NHSLA tend to vary as they are updated, with the result that it is extremely difficult to establish definitive data. For example, sums quoted as having been paid to claimants as damages are also unreliable indicators of the actual sums eventually paid, as it is not always clear whether the figures stated include structured settlements. If there is a structured settlement and the claimant dies within a few years, the amount actually paid would be greatly reduced. In any event, at least as far as claims on behalf of brain-damaged infants are concerned, it is likely that whatever figures are quoted, in many cases the real costs are much higher because special education, nursing care, continuing health problems and social services are not necessarily included.²⁰ In Crofton v NHSLA [2007] ENCA Civ 71, the Court of Appeal held that damages paid by insurers should be reduced by the amount being paid by local authorities to support claimants.

Data produced by the Compensation Recovery Unit (CRU) presents a rather different picture from that supplied the NHSLA, as its information does not relate solely to England. The CRU is charged with the task of administering the scheme for recovering any social security benefits that have been paid to claimants from compensation payable to them in the course of a claim.²¹ Although not every claimant has been in receipt of benefit,²² all compensators are required to inform the CRU promptly of claims made against them for personal injuries. It should therefore be able to provide accurate and up-to-date information about the number of claims for clinical negligence as well as those relating to other accidents and injuries. It has been suggested²³ that the CRU is the most reliable source of d...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Dedication
• Table of Contents
• List of illustrations
• List of abbreviations
• Acknowledgments
• Introduction
• 1 Data, accuracy, compensation and error: what should we believe?
• 2 Reasons for the increase in claims: who is to blame?
• 3 The compensation culture in healthcare: myth or reality?
• 4 Perpetuating the myth: should we blame the media?
• 5 Doctors: over-paid, out of control and under-regulated?
• 6 Treating the affliction: are there any remedies?
• Index