What is medical negligence?
'Medical negligence' describes when medical intervention in the treatment of a patient has materially contributed to a deterioration of a patient's condition.
In civil law, 'negligence' is a tort: an act or omission that causes harm to an individual's property, reputation or interests. The law of tort imposes a duty of care where one party could reasonably foresee that his or her conduct may cause harm to another. In most cases of medical negligence, the claimant has to prove that he or she has suffered injury or other harm because of the negligence of the healthcare provider.
Some medically negligent conduct may also constitute a criminal offence.
Within the National Health Service (NHS), it is clinicians' employers, which are usually NHS Trusts, rather than the individuals themselves that are deemed to hold the duty of care to patients.
The evolution of the legal concept of medical negligence is a surprisingly recent development. The tort of negligence itself was only founded in the UK with the case of Donoghue v Stevenson 1932, when commercial liability for defective produce was established.
The key precedent in the establishment of medical negligence was provided by the Bolam proceedings of 1950. This case provided the so-called 'Bolam test', which has underpinned the UK's arrangements for more than half a century. The test provides a defence for medical professionals when they have "acted in accordance with practice accepted as proper by a responsible body of medical opinion".
In practice, this made winning a negligence claim very difficult. The Bolam test was amended by a judgement in the late 1990s to permit a judge to conclude that a medical decision that is not capable of withstanding logical analysis is unreasonable and the treatment therefore negligent.
To deal with clinical negligence in the NHS, the Government created a centrally funded pool of resources to meet the costs of any claims brought against the NHS. The NHS Litigation Authority (NHSLA) was set up in 1995 to contest law suits on behalf of the Secretary of State. Contributions are extracted from NHS Trusts on the basis of assessments of their risk management procedures. Suits against GPs and other primary care professionals are not dealt with by the NHSLA, but are defended by a number of medical defence organisations.
Recognising the growing financial burden imposed by clinical negligence claims filed against the NHS – many actually resulting from increasingly complex and ambitious interventionist procedures being undertaken – and seeking to rectify flaws in the existing system, the Department of Health conducted a review of arrangements in 2003 and published a consultation paper, 'Making Amends – Clinical Negligence Reform', in July of that year.
The paper emphasised the importance of negligence prevention through reducing risks, preventing harm and promoting best practice, rather than remedial cure through damages. Where remedial action is required, a better co-ordinated response and the development of a more predictable and affordable system of redress was proposed, encapsulated by the suggested establishment of an 'NHS Redress Scheme'.
In February 2007, the Department of Health, building on responses to consultations, published the White Paper, 'Trust, Assurance and Safety – the Regulation of Health Professionals in the 21st century'. This set out an ambitious programme for reforming professional regulation, including the creation of 'responsible doctors' – i.e senior doctors with personal responsibility for evaluating the conduct and performance of doctors and making recommendations on their fitness to practise as part of revalidation.
A consultation entitled 'Responsible Officers and their Duties Relating to the Medical Profession' was launched in July 2008 and closed in October of that year. Following a further consultation, draft regulations were laid before Parliament in 2010 to come into force in January 2011.
The 2003 review acknowledged the unsatisfactory nature of medical negligence arrangements. Cases have tended to take a long time to conclude, and at great expense, which has encouraged clinicians to practice 'defensive medicine' and avoid risky procedures. The lack of alternative means for settling disputes pushes complaints into a high-stakes and highly confrontational legal arena.
The lack of alternatives to legal redress makes it very difficult for the victims of medical accidents or negligence to obtain explanations of what happened to them and in particular to extract apologies.
The NHS has been accused of trying to cover up malpractice and deliberately withholding evidence to hamper such prosecutions. Denying liability and haggling over costs has also led to controversially high legal fees incurred by defending these proceedings. A National Audit Office review found that in the majority of claims under £45,000, the associated legal and administrative costs actually exceeded the final damages award. The consultation paper, moreover, noted that 95 per cent of cases were settled out of court.
The situation has reached crisis proportions in the US – which has a similar legal framework to the UK – where the escalating cost of settlements and the growing readiness of patients and lawyers to pursue claims have led in recent years to doctors' insurance premiums becoming more expensive.
The Department of Health acknowledges the high level of adverse incidents in NHS hospitals, revealing that 10 per cent of in-patient admissions result in some form of adverse outcome, and five per cent of the general population report suffering some injury or other adverse effects of medical care. The factors cited in explanation include underfunding, staff shortages and overwork and conflicting priorities. However, it is also accepted that risk management and the avoidance of clinical error has not received the focus that it deserves in the past.
NHSLA Annual Report and Accounts highlights 2012:
14,171 claims closed, 13% up on last year and more than 40% higher than three years ago.
Average time to resolve a claim still under sixteen months.
37% of claims resolved without any damages paid.
Growth in clinical claims slowed last year:
Rise of 5.6% in new clinical claims in 2011/12
This compares with a 58% rise in the previous three years
Reduction in legal costs:
Total legal costs more than 10% down in clinical claims where damages were paid.
Legal costs of defending claims down by more than 20%.
Claimants’ legal costs now nearly 80% of the total.
From next April, law will prevent recovery of success fees from the defendant.
Source: NHS Litigation Authority -2012
"The NHS Litigation Authority was created to deal with claims from patients who have been harmed while undergoing NHS treatment. It aims to pay justified claims promptly and fairly,and to defend unjustified claims robustly.
It also has a role in helping providers to learn lessons from claims, to better manage risks and improve patient and staff safety."
NHSLA – 2012