The economics of clinical negligence compensation - is the legal system failing society’s most vulnerable?

Posted: 01/03/2019

What is the most catastrophic outcome for an individual when their medical care goes wrong? Thinking about this sensibly, the answer is an easy one: death. However, there is a disconnect here with the compensation received. A phrase often bandied around is that it is much more expensive to maim than to kill and, sadly, this is true.

This situation is exacerbated when the person who dies is elderly, a child, or, in certain situations, disabled. Compensation when a person dies is split between bereavement damages, which is an amount set by law payable to certain categories of person, and loss of services, dependency and pension.

Taking the elderly widow/widower as an example, as there is no living spouse, there is no entitlement to bereavement damages. Often when an elderly patient passes away their condition declines very quickly, which means that any compensation for pain, suffering and loss of amenity is also very limited. They are also very unlikely to have any dependants. The result is that any claim brought on behalf of this person will be low in financial value and, as the court makes it clear that solicitors should consider proportionality (the cost of investigating a claim versus the compensation likely to be awarded), it can be very difficult to obtain legal representation to bring such a claim. It is hard to see this as justice for the bereaved family.

In the scenario where a child dies due to negligent treatment, whilst his or her parents will be entitled to bereavement damages, other compensation will be restricted as a child will not have any dependants for whom a loss of dependency claim could be presented. A young life will have been lost with very limited compensation payable to, most likely, devastated parents who again may struggle to find legal representation due to the financial sums in question.

It is not only the bereaved family who suffers because of the challenges of bringing a claim in this scenario, but the community at large. As well as obtaining compensation for the wronged individual, litigation acts as a mechanism to highlight failures and keep individuals and processes in check. Arguably, when a significant number of people struggle to obtain legal representation despite having experienced serious errors in their care, there is real potential for these grave errors to continue.

With fixed costs for low value clinical negligence claims on the horizon, vulnerable individuals are even more at threat. Many clinical negligence lawyers believe that those without mental capacity (perhaps due to dementia of some sort, or other disability), and children should be kept out of the proposed fixed costs regime. However, this will not protect everyone and the Government and NHS trusts should consider how they can continue to provide justice to those who have experienced the most significant harm. Widening the categories of individuals who are able to claim for bereavement damages under the Fatal Accidents Act 1976 to include adult children and unmarried partners would go a small way towards counteracting the imbalance.

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