Medical indemnity: The ticking clock of clinical negligence reform

The new government must carry out root and branch reform of the outdated clinical negligence system, before it's too late, says MDU chief executive Dr Christine Tomkins.

In her speech tomorrow, the Queen will set out her new government's programme for the next parliament, and health service provision will, rightly, be one of the burning issues. However, there is a less well-publicised but grave threat to the health service that has been building for years and must be addressed.

Clinical negligence reform may not be a fashionable political cause but a change to the law would make a profound difference to doctors and patients alike. With medical claims inflation running at 10%, effective action now would stop billions haemorrhaging from the NHS and bring in additional money to fund public services.

It would also halt the unaffordable rise in GP indemnity costs which has already forced some GPs to leave their practice and is deterring young doctors from entering primary care.

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This article is funded by the MDU for GP Connect

Every change to the civil litigation system in recent years has failed to address the problem effectively and increased the financial pressure on members.

Cut to discount rate

The latest blow was the Lord Chancellor's sudden decision to cut the discount rate - the interest rate used by courts to calculate lump sum payments to personal injury claimants - by a drastic and unprecedented 3.25%. The new rate of minus 0.75% came into effect on 20 March and will apply to all new claims and to claims that have been made but not yet settled.

To show the profound impact this will have on compensation awards, the MDU looked at some of the GP claims we settled under the old 2.5% rate. To take just one example: a 14-year old patient with a 50-year life expectancy who was previously awarded £8.4m would now receive a lump sum of £17.5m, an increase of 108%.

The Lord Chancellor's action shows how far decision-making in this important area has become divorced from its real consequences. The predictable effect of this low discount rate is to inflate compensation awards dramatically.

Doctors are not responsible for rising negligence costs, but NHS GPs, for example, have to pay for their own indemnity, and this change knowingly imposed by the Lord Chancellor has pushed the cost of that indemnity to an unaffordable level.

The law and the GMC both require doctors to have adequate and appropriate indemnity before they can practice. But if the government then makes indemnity prohibitively expensive, what choice does that leave hard-working GPs who are already facing unprecedented financial and workload pressures? And where does that leave patients?

Action is needed now

In announcing the change to the discount rate, the Lord Chancellor acknowledged its damaging impact on GPs and promised: 'The Department of Health will work closely with GPs and medical defence organisations to ensure that appropriate funding is available to meet the additional costs to GPs, recognising the crucial role they play in the delivery of NHS care.'

Anything that addresses the financial repercussions for GPs of a government minister's decision would be a positive move, but the MDU has been talking to the government about this issue since last December and our members have not received any funding to meet the additional costs. Actions speak louder than words and action is needed now.

Extra funding, if it comes, will be welcome but it is only papering over the cracks. As we made clear last year when NHS England announced its GP Indemnity Support Scheme, subsidies do not tackle the real problem, which is that the frequency and cost of clinical negligence claims are causing claims inflation to spiral out of control.

Nothing less than root and branch legal reform will tackle this creaking and outdated clinical negligence system. That is why the MDU continues to advocate the following legal reforms. They are the only way to make clinical negligence awards proportionate, sustainable and fair for all parties:

  • Repeal 70-year old legislation which obliges defendants to pay for a bespoke private sector care package. It should be possible for defendants to buy NHS and local authority care packages for claimants with long-term needs which would boost NHS funds for the benefit of all patients.
  • Introduce mandatory fixed limits on legal fees in medical negligence claims settled for up to £250,000.
  • Introduce a cap on future loss of earnings compensation.
  • Reform the way the discount rate is calculated to more accurately reflect the way personal injury claimants invest lump sum compensation payments.

The MDU continues to work with the government to reach a satisfactory solution for GPs to the immediate crisis caused by the discount rate change. However, it is of deep concern that successive governments have failed to deal with claims inflation, leaving members to bear the brunt.

This affects everyone

This is not some esoteric problem of interest only to the MDU and our members. It is a matter which should be of grave concern to the public as, ultimately, it affects everyone's access to healthcare. We all need and rely on GPs but indemnity costs are causing them to leave or avoid primary care.

There is no argument for waiting until the cost of indemnity stops the delivery of healthcare. The writing is clearly on the wall and has been for a long time. The civil negligence system needs to be reformed in a measured way so it is fair and sustainable for patients, doctors and the NHS.

For GPs the problem is acute, but equally it is in the interests of everyone in the profession to help safeguard the future of general practice within the NHS, and patient access to healthcare across the board.

I sincerely hope all GPs will make sure their voices are clearly heard by the new government – see the box above for how you can back the MDU's campaign and find more information here.

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