Penningtons queries union denial that clinicians are to blame for rise in clinical negligence claims

Posted: 16/08/2012

Penningtons Solicitors LLP’s clinical negligence team is concerned by the view expressed by the Medical Defence Union (MDU) in its 2011 Annual Report that clinicians are not to blame for either the rise in the volume of clinical negligence claims or the costs of bringing these claims.

The MDU, a body which indemnifies individual doctors against medical negligence claims, indicated in its report published on 8 August 2012 that the current rate of increase in the number of claims against the MDU was its highest ever but did not appear concerned that this was due to reducing standards of care.

Penningtons' clinical negligence partner, Philippa Luscombe, said: "We are concerned that the MDU has taken the view that the rise in claims has been due to factors other than the standard of care that patients receive. What we are seeing is an increasing number of incidents of substandard medical care and a failure to spot and address patterns of errors which are increasingly caused by a lack of resources and complicated communication pathways.

“The medical experts with whom we work are concerned at some of the new NHS systems and processes which affect GPs and their ability to refer and manage patients. These experts feel that the net result is more failings in patient care and the figures published by the MDU would seem to support this”.

In its statement, the MDU denied that the increase in these claims is "driven by deteriorating standards of care, or a change in the underlying type of incidents that are giving rise to claims". Instead, the MDU believes that the "continuing availability of no win, no fee arrangements to fund cases is a factor".

Says Luscombe: “We consider this unlikely given that the availability of funding and the profile of claims has remained broadly the same over the last few years, whereas the number of claims is increasing. We also find that this doe snot explain the 23% increase in claims made to the GMC over the same period – which has very little to do with any claim for compensation.

“Interestingly, the MDU expresses concern that the value of the claim bears no relationship to the seriousness of the negligence and highlights that it can be as simple as an error on one consultation. We take issue with this. The value of a claim relates to the degree of injury sustained and therefore, by definition, must reflect the severity of the error because of the impact on the individual patient.

“The MDU has also welcomed the provisions in the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LAPSO) which, from April 2013, will remove the ability of successful claimants to recover success fees from losing defendants and says that it intends to lobby the government for measures to reduce the cost of representing claimants in clinical negligence. This contrasts with the concerns of many clinical negligence lawyers acting for claimants that the new rules will make it more difficult for individuals to access funding for claims and will mean that individuals end up paying legal costs out of their damages – rather than the damages compensating their losses.

“We are concerned that, if the existing number of claims is not improving patient care, restricting the ability of claimants to bring claims may, in fact, result in falling standards. We believe that the three best ways to reduce the number and cost of clinical negligence claims are by improving clinical standards and patient care; tackling failing corporate governance within treating institutions; and taking a sensible approach to litigation. This means admitting real errors and settling valid claims early to keep costs down rather than dragging out litigation in the hope that the claimant gives up or settles at a low figure.”

Philippa Luscombe continued: “We are still seeing many claims being settled very late in the day, resulting in high costs on both sides. The MDU report refers to 70% of claims being rebutted and we would support the view that only claims with merit should result in recovery of costs and damages. However, of the cases which are ultimately settled, it would be interesting to know how many of these are settled early - keeping costs down - and how many are defended far down the line - attracting high legal costs as a result.

“Our experience indicates that not only has the MDU become slower at dealing with claims but that it also tends to make an early stance and stick with it. In cases where the case should be settled or there is strong evidence to defend, this is right. However, our experience is that cases are sometimes disputed or delayed for months and years before admissions are finally made and the cases settled.

“One area for improvement is complaints. At Penningtons, when we are approached by individuals with concerns about hospital care, they are often simply seeking an explanation or apology. The NHS complaints procedure provides a process for this and a well-prepared and honest response to a complaint can often conclude matters very early – sometimes with no claim at all. The GPs (who represent a significant number of MDU members) do not have the same process in place. Complaints are frequently ignored or patients are simply told that they are wrong to complain. We believe that better management of complaints would have a positive impact on reducing the number of claims instigated.”

While the incidents of clinical failings in medical care continue to escalate, the provisions in LAPSO are already set to deny victims of medical accidents the access to justice to which they are entitled. Penningtons believes that an emphasis on the costs of running claims rather than on the behaviour of treating professionals and institutions and their legal representatives will only serve to increase this injustice.

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