Written evidence submitted by Wake Smith Solicitors Ltd (NLR0034)
The costs of current litigation (damages and Claimant legal costs) are in fact reducing, despite Defendant costs increasing. The costs of litigation against the NHS budget as a percentage is in fact far below the level of indemnity required in other professional sectors.
Further, litigation is a significant driver for patient safety and it is of fundamental importance for the NHS to learn from its mistakes. This has been highlighted in previous research from the CQC and the NAO, which has shown that the organisation is continuing to fail to identify and remedy the underlying causes of errors in medical treatment.
Our system based on the principle that the wrongdoer pays compensation to put the victim in the same position, so far as money can, that they would have been in but for the negligence is fair and works well. Any legislative reform would require major alterations which go against long-established principals. Better to look at improved training, education and safety within the NHS to prevent the problems happening in the first place. If there is to be tort reform, it would have to be across the whole of the civil justice system requiring primary legislation. Clinical negligence cannot and should not be dealt in isolation.
Further, tort reform is unlikely to produce any overall cost saving. For example, if injured patients are undercompensated, there would be an increased burden on the NHS to make up the difference; and their recovery and return to work would be delayed, so that the Government’s tax income would reduce and spending on State benefits payments increased.
Collaboration is key and we have found that when we can work together (ie as claimant and defendant lawyers have achieved during the covid crisis) then it is a quicker, simpler and more cost effective process for all involved.
Most claimant lawyers are specialists accredited by the AvMA or Law Society panels and work well together under the auspices of SCIL, thus enabling a collaborative approach with NHSR, MDU and MPS and their panel firms. Working together well to ensure continuity is key and this does happen. It also helps the resolution of claims without the need for Court proceedings.
It could provide a crucial role for both sides with more resources ploughed in. Greater independence and transparency would mean clinicians would not fear reprisals from their employer or regulator and families would be better educated on their position. Many Trusts currently have poor engagement with the system due to lack of training, hence the scheme’s credibility is low at present. This also results in families involved not being aware of the scheme or failing to be supported or to gain independent advice.
Patient safety and learning should be the key focus to reduce costs with the patient properly compensated when any harm is caused. The introduction of fixed costs would not achieve this. Research has in any event shown that costs and damages are reducing. We are also aware that SCIL has already responded the Government’s FRC proposals and provided the Government with an alternative scheme, offering a solution to lower value claims, without the associated fixing of costs. We believe that a pilot of the SCIL scheme should be implemented over a trial period.
Supposition and anecdotal information only says litigation has adversely changed how the NHS is run. It is important that the causes of errors are analysed to improve patient safety, offer chances to improve, resolve claims and compensate patients and reduce the cost of litigation. Patient safety remains key and there is simply no evidence of a compensation culture in the UK. The learning culture does need to change but only to help NHS employees benefit in their roles and maintain and improve patient safety.
Specialist claimant solicitors have a rigorous vetting procedure, so that only a very small percentage of enquiries (about 10% or fewer) become actual clinical negligence claims, after careful investigation, to ensure so far as possible that only meritorious claims are pursued.
Absolutely essential. Clinical negligence continues to play a key part in showing problems in the NHS. Any opportunity to highlight, prevent and learn from mistakes must not be underestimated or ignored, but, rather, encouraged. Clinicians should feel they can learn from the experience without fear of reprisals or recrimination. The importance of the role of litigation will be apparent from the various recent health scandals, including Telford, Patterson and Shipman.
The changes should come from within the NHS, so clinicians do not fear reprisals from their employer or regulator and learn from their mistakes.
If more money was invested in the system, the speed and depth of investigations would improve, allowing greater education about what has happened leading to improved/favourable patient responses.
From our experience, many patients only litigate as a last resort and much litigation could be avoided, if patients were to receive a full and honest explanation for what went wrong, confirmation of the steps being taken to prevent the same thing from happening to another patient and, where appropriate, a meaningful apology.
What is in place does work adequately and any legislative reform would require major alterations which go against long established principals. Better to look at improved training, education and safety within the NHS to prevent the problems happening in the first place. A safer NHS would obviate the need of further reform.