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It’s happening more and more frequently. 

A lazy reporter dreams-up a topic for a Freedom of Information request, gets public servants running around, researching the information, string it together with a few words and… bingo, a scoop. 

The BBC’s Angus Crawford has got the NHS running around. Like it’s not busy enough… got a lot more things to do.

Crawford’s scoop? In his words; 

‘The NHS faces a huge clinical negligence legal fees bill.’ 

Actually, the £43bn figure quoted includes all current unsettled claims and projected estimates of ones in the future.  The NHS may never need pay out anything like that.

If Crawford could be bothered he could have read NHS Resolution’s excellent annual report.

Every NHS failure is a catastrophe for a family or those left to deal with it and dare I say, for the clinician who came to work on that morning, full of optimism, only to leave, their life in ruins.

There are no winners. If there is anything to gain, it is the learning. The assurance that it won’t happen again.  But… 

  • There’s no meaningful measure of ‘avoidable’ mortality at Trust level.
  • Case record reviews involve finely balanced judgements. Different reviewers may have different opinions about whether problems in care caused a death. 
  • Much of the data is not comparable and reviews are far from routine.
  • Routine mortality reviews are not mandatory and not fully funded by the DH.  
  • The guidance is three years old.

Today, nearly a million people will be in the care of the NHS. Will they all be safe? You know the answer.  

Someone, somewhere, will make a mistake.  Overlook something, miscalculate, be tired enough, busy enough, distracted enough to confuse a protocol, a system… suddenly there’s a disaster.

Each week the NHS receives 200 claims for compensation.  

About a third are resolved without payment. Some are paid, to avoid protracted litigation.  

The average claim takes between 18 months and three years. Others, dealt with by disputes resolution.  Some, end up in court.

If there’s any good news; the number of claims has stabilised and is not increasing, despite the NHS treating a lot more patients.

Why are payouts so high?  No win no fee lawyers? The claim numbers are stabilising, so no? Anyway, if people have been damaged by the NHS, they have every right to sue.

In common law, medical malpractice liability is normally based on the laws of negligence.

As a broad, general rule, liability follows when a health care practitioner does not show a fair, reasonable and competent degree of skill when providing medical care.

The Supreme Court decided in 2018, (The case of Croydon NHS Trust) the duty of care extended to information given to patients by clerical staff… ouch!

Huge payouts?  Go go back to the beginning of the NHS. There was a debate; ‘what if the NHS got treatments wrong’…

Doctors argued, if the State system made an error, people would not want to let the NHS put it right.  Therefore, compensation should be calculated on the basis of the private sector providing the resolution.

Today, if a child is damaged at birth, the courts calculate damages on the basis all on-going care and treatment, will be provided privately, where patently, it will be the NHS that does.

This legacy system needs changing. That’s the story Crawford missed and why next year he’ll be writing about the same FOI. 

Once the legal process is started, resolution is in the hands of the process; summons, complaints, discovery, arguments of privilege and hearings. None of this can Trusts control.

Even then, it is not over. Later comes the professional misconduct hearings for the practitioner.

It doesn’t have to be like this.  

Sweden; they have a no-fault system for the compensation of people injured. The behaviour of the clinician is dealt with separately. The courts are not involved.

New Zealand; a Crown entity, the Accident Compensation Corporation administers no-fault compensation.

France; has two systems, a no-fault standard for serious and unforeseen medical injuries and a fault standard.

Crawford didn’t get the real story because he didn’t ask the golden question; ‘why’.

The story’s not about time, cost, the money. The story is, why the NHS and patients are stuck in a useless system.

The bigger issue; why ministers aren’t fixing a rotten system? Reporters write stories, journalists ask, why.

News and Comment from Roy Lilley

Contact Roy – please use this e-address roy.lilley@nhsmanagers.net

Reproduced at TrainingPrimaryCare.com by kind permission of Roy Lilley.