Legal overhaul needed to fix unsustainable GP indemnity costs, experts warn

A raft of legal reforms is urgently needed to slow the 'unsustainable' rise in clinical negligence claims currently driving GP indemnity fees through the roof, a report by medico-legal experts warns.

NHS: cost of clinical negligence claims rising fast (Photo: iStock)
NHS: cost of clinical negligence claims rising fast (Photo: iStock)

The cost of NHS clinical negligence claims has increased by 72% over the past five years, an average 11.5% increase each year. The total annual cost of claims has now risen to £1.5bn – equivalent to the cost of training 6,500 new doctors, according to the report by the Medical Protection Society (MPS).

Annual costs will balloon to £2.6bn within five years if the current rate of increase continues, the report warns, prompting knock-on increases in GP indemnity fees.

The Rising costs of clinical negligence report says legal reforms are needed to strike a balance that is ‘reasonable but also affordable’ – slowing the unsustainable pace of rising costs while still compensating affected patients.

Nine proposed legal reforms include putting caps on lawyer fees, use of national average earnings when determining compensation payments so higher earners do not receive more than lower earners and implementing a 10-year cut-off point for historical claims.

Read more: Why patients sue doctors

Analysis by the group found a full-time GP is twice as likely to receive a claim for clinical negligence now than nine years ago – and can expect to receive two claims over a typical career.

Claims against GPs can cost significant amounts, sometimes running into millions of pounds – ‘far out-stripping’ the amount a GP will pay for indemnity over their career.

The MPS said the highest claim to date against one of its GP members was for over £5.5m, and it expected to ‘see more claims of this magnitude’, especially following changes to the personal injury discount rate.

It added there were currently ‘a number of open GP claims’ exceeding £5m that had yet to be resolved.

The top five errors that led to the most expensive claims against GPs included the failure to or delay in diagnosing cauda equina syndrome, meningitis, cancers and peripheral ischaemia, followed by deficiencies in chronic disease management.

Clinical negligence

Emma Hallinan, director of claims at the MPS, said: ‘It is important that there is reasonable compensation for patients harmed following clinical negligence, but a balance must be struck against society’s ability to pay. If the current trend continues the balance will tip too far and the cost risks becoming unsustainable for the NHS and ultimately for society.

‘We believe whole system legal reform is needed and this sits at the heart of our Striking a Balance campaign – we need a regime that achieves a balance between compensation that is reasonable, but also affordable.

‘There is growing recognition from government on the need for a more sustainable long-term solution. A YouGov survey also showed that 73% of the public support changes to the legal system that could reduce the cost of clinical negligence to the NHS.

‘When considering the financial challenges facing the NHS and the change to the personal injury discount rate – which has increased the cost of compensation for clinical negligence, exacerbating an already challenging situation – there has never been a more pertinent time to tackle the root of the problem.'

Proposed reforms

  • A limit on future care costs based on the realities of providing home based care.
  • The use of national average weekly earnings to calculate damages awarded, instead of a patient’s weekly earnings.
  • Introduction of a 10-year limit between the date of an adverse incident and when a claim can be made.
  • A minimum threshold for cash compensation relating to claims for minor injuries.
  • Changes to provisions meaning the patient would need to seek the courts approval to withdraw from a claim less than 28 days before a trial.
  • A fixed recoverable costs scheme for clinical negligence claims up to a value of £250,000.
  • Changes to the rules relating to claimant expert reports covered by after-the-event insurance.
  • Consideration of ways to reduce expert fees such as capping fees or the number of experts that can be instructed.
  • An increase in the small claims track threshold for clinical negligence claims  up £5,000.

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