Download FAULT LINES Resolving clinical negligence claims

COMPENSATION
FAULT LINES
Resolving clinical
negligence claims
In the final part of her series on compensation
for clinical errors, Clare Dyer asks if no-fault
schemes offer fairer and more cost effective
ways to resolve medical injury claims
bmj.com Previous articles in this series
̻̻Feature: Suing the NHS: can the £1bn
annual compensation bill continue?
(BMJ 2013;346:f978)
̻̻Feature: The long road to ensuring
patient safety in NHS hospitals
(BMJ 2013;347:f4501)
he cost of clinical negligence claims
sionals.” But Labour decided not to take the idea
against the NHS in England rose to
forward.
£1.259bn (€1.5bn, $1.9bn) in the
In 2003 the then chief medical officer for Englast financial year, and the number
land, Liam Donaldson, recommended a no-fault
of new cases in 2012-13 climbed
scheme for birth injuries only, in his paper Makby 10.8% to more than 10 000.1 The year
ing Amends.5 But even this limited attempt to cut
before, in 2011-12, the bill breached £1bn
legal costs for the most expensive category of
for the first time after a 30% rise in claims the
claim was not taken up. And in 2011 the House
previous year, forcing the UK government to
of Commons Health Committee again rejected
pump in an emergency cash injection.2
no-fault compensation for England and Wales.
The figures highlight the ballooning cost of The committee echoed the concerns of critics
resolving medical injury claims through the over the decades that such a scheme, although
traditional tort system. The number of claims it would save on legal fees per case, would lead to
is rising, payouts in the most serious cases are more claims and reduced levels of compensation
getting bigger, and the legal costs remain stub- for the most needy, while probably costing the
bornly high. Is there a better, more cost effective, NHS more than the current system.6
and fairer way to compensate patients who are
No-fault schemes have existed in New Zealand
harmed during medical treatment?
and Sweden since the mid 1970s and in Norway,
In at least one of the UK’s four countries, the Denmark, and Finland since the late 1980s and
powers that be think the answer is yes. Scotland early 1990s. Patients claiming compensation
is considering a no-fault compensation system under the schemes are not required to prove
for medical injuries, in line
that hospitals or health pro“There are alternatives to fessionals were negligent, as
with the recommendations
of a government appointed the classic civil litigation
they would be in the courts.
fault based adversarial
review group.3
But they still have to prove
In England, no-fault com- model, which can be more that the treatment caused
pensation has been debated cost effective”
their injury. And under the
for decades but has never got
existing schemes, payouts are
off the ground. In 1978 the
smaller than those received by
Pearson Royal Commission rejected the idea of a litigants in the UK for equivalent injuries.
no-fault scheme for medical injuries, arguing that
The expert panel in Scotland, chaired by
the scope would be hard to define.4 The issue sur- Sheila McLean, emeritus professor of law and
faced again in 1997, when the incoming Labour ethics in medicine at Glasgow University, recomgovernment was considering former Treasury mended a scheme based largely on the Swedish
permanent secretary Peter ­Middleton’s recom- model. Payments would be lower than under
mendation for a no-fault scheme. ­Middleton the current system, but claimants would have
contended, “It makes very little sense to have an a guarantee that their needs would be met by
increasing amount of time and money from the lifelong care provision by the state. They would
health budget extracted in legal fees rather than retain the right to litigate, but any financial award
patient care, and to engage in a set of arrange- they received from the no-fault scheme would be
ments where legal professionals can earn more deducted from the payout achieved by litigation.
money from public funds than health profesResponses to the Scottish government’s
consultation highlight fears that the proposed
scheme would encourage many more claims and
end up costing more than the current system.7
The government says it will publish its response
to the consultation soon, including its proposed
way forward.
BMA Scotland, which supports no-fault
compensation in principle, says it would back
a scheme that improved on the current system
“provided it does not increase costs to the NHS
and direct money away from patient care.” The
Medical Defence Union has doubts about the
affordability of the scheme and asks, “Will the
public believe lower compensation payments,
and presumably a requirement to rely entirely
on NHS provided treatment and care, are preferable to the existing system?” The Medical Protection Society welcomes the scope for greater
openness between patient and doctor but calls
for a pilot scheme to test the workability of nofault compensation. Support is stronger for a nofault scheme for serious birth injuries, if the full
scheme fails to get the go ahead.
In the late 1980s two US states, Florida and
Virginia, introduced no-fault schemes for serious neurological birth injuries only. The context
was a malpractice crisis and the main aim was to
cut insurance premiums for obstetricians, who
were unable to get affordable cover. In Virginia it
was estimated in 1987 that 25% of obstetricians
would be uninsured if the state failed to act.
Another US move to contain the cost of medical malpractice, adopted by more than 30 states
so far, is a cap on compensation. The provisions
vary widely between states. A few impose a cap
on total payments, whereas most cap only such
non-pecuniary damages as pain and suffering.
But despite Americans’ reputation for litigiousness and stories of irrational jury awards,
features of the US malpractice claims system act
as a check on the compensation bill in practice.
If liability is disputed, there is little chance of
T
BMJ | 17 AUGUST 2013 | VOLUME 347
13
COMPENSATION
­ aking a successful claim without a lawyer.
m
Lawyers will demand a contingent fee of a third
or more of the proceeds plus expenses if they
win a case, but get nothing if they lose, so they
are highly selective and tend to take on only
large cases. One study found that only one in 30
calls to law firms led to the filing of a lawsuit.8
As in the UK, few cases go to trial and the
overwhelming majority are settled out of court.
Large jury awards hit the headlines, but studies show that claimants typically receive only a
fraction of the damages awarded. “When jurors
award large amounts of money, defendants
rarely pay the full amount,” write Hyman and
Silver in a 2012 paper analysing a number of
studies.9 The award may be adjusted downward
by the judge, or under pre-judgment agreements by the parties, or as part of negotiations
to avoid an appeal, or because the defendant
hospital or doctor has limited insurance. “Physicians rarely use personal assets to satisfy
malpractice claims,” they write. “As a practical matter, the stakes in malpractice suits are
capped by the limits of physicians’ insurance
coverage, regardless of the severity of patients’
injuries or the amounts that juries believe
patients ought to receive.”
In the UK, in cases where full liability is
admitted or established, patients are fully
compensated as a rule, with the cost met by the
NHS for hospital care and by the mutual medical defence organisations for general and private practitioners. But for lower value cases, the
claimant’s legal costs are often greater than the
damages awarded. The disproportionate cost of
resolving these claims through the legal system
has led to a search for a simpler procedure with
lower legal costs.
The NHS Redress Act 2006 was an attempt
to set up a framework for a speedy, low cost
administrative scheme as an alternative to litigation for settling claims of up to £20 000. The
plan was that the health service would carry
out the investigation and, if the NHS body was
deemed to be at fault, make an offer of amends
to the patient, who would receive independent free legal advice before deciding whether
to accept the offer. But the act has not been
brought into force in England and there are no
active plans to implement it. In Wales, however,
Putting Things Right— a version of the scheme
combining complaints handling and redress
for claims of up to £25 000—was adopted from
1 April 2011.10
In France and Germany, patients can choose
a simpler and quicker method of dispute resolution as an alternative to litigation for resolving clinical negligence claims. Under France’s
Patients Rights Law of 2002, patients may
either launch legal action or bring their claims
14
before a regional conciliation commission.
Around 60% of claims are resolved by settlement though conciliation commissions.11
In Germany, medical arbitration boards
began operating in the 1970s on the initiative
of regional medical councils. Patients retain
the option of legal proceedings, but around
one in three claims goes before an arbitration
board, which is cost free for the patient. Claims
are typically assessed by a panel of three to five
members, one legally qualified and the rest doctors. The board produces an expert report on
whether there was faulty treatment that caused
the patient’s injury.12
Duncan Fairgrieve—who is both an English
barrister and a French avocat, and director of
the Tort Law Centre at the British Institute of
International and Comparative Law—believes
that the UK could learn from options adopted in
other countries to tackle cases in which treatment
goes wrong. He says, “Comparative law sources
illustrate that there are alternatives to the classic civil litigation fault based adversarial model,
which can be more cost effective and, crucially,
may allow those concerned to ensure that lessons
are learned from medical accidents.”
Clare Dyer legal correspondent, BMJ
[email protected]
Competing interests: None declared.
Provenance and peer review: Commissioned; not externally
peer reviewed.
1
NHS Litigation Authority. Report and accounts 2012/13.
www.nhsla.com/aboutus/Documents/NHS%20LA%20
Annual%20Report%20and%20Accounts%202012-13.
pdf.
2 Dyer C. NHS compensation fund gets £185m bailout as
claims rise by 30% in a year. BMJ 2012;344:e411.
3 Scottish Government. No fault compensation review
group report. February 2011. www.scotland.gov.
uk/Topics/Health/Policy/No-Fault-Compensation/
ReviewGroupVol1.
4 Royal Commission on Civil Liability and Compensation for
Personal Injury. Report. 1978.
5 Department of Health. Making amends: a consultation
paper setting out proposals for reforming the
approach to clinical negligence in the NHS. A report
by the Chief Medical Officer. July 2003. http://
webarchive.nationalarchives.gov.uk/+/www.dh.gov.
uk/en/Publicationsandstatistics/Publications/
PublicationsPolicyAndGuidance/DH_4010641.
6 House of Commons. Health Committee. Complaints and
litigation. Sixth report, June 2011.
7 Scottish Government. Responses to consultation
on “Recommendations for no-fault compensation
in Scotland for injuries resulting from clinical
treatment”. February 2013. www.scotland.gov.uk/
Publications/2013/02/4882.
8 LaRae I, Huycke RN, Huycke MM. Characteristics of
potential plaintiffs in malpractice litigation. Ann Intern
Med 1994;120:792-8.
9 Hyman DA, Silver C. Medical malpractice and
compensation in global perspective: how does the US do
it? Chi Kent L Rev 2012;87:163.
10 Welsh Government. Putting things right. www.wales.nhs.
uk/sites3/home.cfm?orgid=932.
11 G’Sell-Macrez F. Medical malpractice and compensation
in France. Part 1: The French rules of medical liability since
the Patients’ Rights Law of March 4, 2002. Chi Kent L Rev
2011;86:1093.
12 Stauch M S. Medical malpractice and compensation in
Germany. Chi Kent L Rev 2011;86:1139.
Cite this as: BMJ 2013;347:f4996
BMJ BLOG Liz Wager
Show us the data
It is almost impossible to investigate
suspected fraud unless you have access
to the raw data. That may seem obvious
but it raises the more interesting question
of who should be responsible for looking
after these data and making sure they are
available if needed.
Cases that frustrated journal editors
brought to COPE (the Committee on
Publication Ethics) in which authors claimed
that their data had been destroyed by lab
fires, floods, catastrophic computer crashes,
or, more bizarrely, eaten by termites, have
made me realise that this task cannot be
left to researchers. And while I’m sceptical
about the disasters that appear to strike
as soon as an author is confronted with
suspicions, let’s not forget that disasters
can occur, even to honest researchers. It
makes sense to store data safely—even if
there’s no whiff of misconduct.
A recent investigation into suspected
misconduct by Imperial College, London
(which found no evidence of fraud) highlights
this issue. The investigation report noted
that to obtain the lab notebooks it required
“protracted negotiation” between the college
and the drug company that had sponsored
the research. While it was unfortunate,
and apparently delayed the investigation,
I wonder what would have happened if the
research had not had an industrial sponsor. In
this case Imperial College failed to contact the
accused researcher (his whereabouts “remain
unknown”), and his supervisor—who also
took part in the investigation—didn’t have the
data. The report sensibly recommends that
the college should make sure that in future
it “retains access to all data and laboratory
books.” But in COPE’s experience, this vital
raw data is often left solely in the hands of
individual researchers and disappears with
them if they vanish.
While Imperial College has recognised
that it needs to scrutinise sponsorship
agreements carefully to ensure similar
problems don’t occur, it and other institutions
should also consider whether they would
always be able to access data generated by
their researchers should questions arise in
the future. Until now institutions have often
seemed reluctant to take responsibility for
data curation–this case should remind them
of this important duty.
̻̻Read this blog in full and other blogs at
bmj.com/blogs.
BMJ | 17 AUGUST 2013 | VOLUME 347