This week the Medical Protection Society (MPS) launched a new campaign to help strike a balance between compensation for clinical negligence that is reasonable, but also affordable.
The NHS spent nearly £1.5bn on clinical negligence claims last year alone – which equates to the cost of training over 6,500 new doctors. The amount spent has increased by 72% over the last five years and if this trend continues for the next five years the situation risks becoming unsustainable.
We believe the current laws need to be examined if we are to stop the costs from spiralling, and a package of legal reforms sits at the heart of our Striking a Balance campaign. But the campaign also looks at what drives a patient to make a clinical negligence claim in the first place. Understanding why patients sue their doctor and what they are hoping to achieve, is an equally important piece of the puzzle.
A number of international studies undertaken over the last 25 years suggest that the relationship between medical errors and litigation may be more complex than we think. A 2004 review of two key studies found that around 80% of the clinical negligence claimants did not actually suffer a negligent injury. In addition, most adverse events don’t result in complaints or claims.
These findings suggest that other motivational factors may be at play. While some patients or their families seek financial redress through litigation to support long-term care or loss of earnings, others pursue legal action to obtain an acknowledgement, explanation or apology - or to ensure steps have been taken to stop the same thing happening again.
A YouGov survey of over 2,000 members of the public in Britain, conducted on behalf of MPS, also indicated that the drivers of clinical negligence claims and complaints may be more complex. A third of those surveyed (33%) said that patients should have access to compensation when something goes wrong regardless of whether harm was caused, and one in five (20%) said they would bring a claim against a healthcare professional if they were dissatisfied with any aspect of the service they received.
Patients who take action against their doctor may have experienced unmet expectations, poor communication, lack of information or involvement in decision making, a lack of empathy or other issues relating to manner and attitude. These experiences alone may not result in a claim, but may influence a patient to make a claim should an adverse event such as a delayed or misdiagnosis or a medication error occur.
Management of expectations is likely to be an important factor. If a patient has an experience that is very different from what they were expecting, there will be a 'disappointment gap' - an equivalent to 'over-promising and under-delivering' and this can impact on a decision to take some sort of action.
Disappointment can easily turn to frustration or anger, which can then lead to blame and then possibly a claim. Similarly, transparency and openness after an adverse event and good complaint handling should a complaint occur, can also influence a patient’s decision on whether to make a claim.
Ultimately, it comes down to better understanding and managing the drivers of clinical negligence claims - not just the actual causes of clinical negligence. If we can better understand the drivers this will give some indication as to how claims - whether associated with negligence or not - might be prevented and how the outcome desired by the patient could be achieved without resorting to legal action.
While we are well informed by international research, current UK-based research is limited and it is important we learn more.
This vital knowledge, combined with legal reforms to tackle the spiralling costs once a claim has been made and continued work on enhancing patient safety, could deliver great benefits to patients, the healthcare community, the NHS and society as a whole.
- Dr Pallavi Bradshaw is a senior medicolegal adviser at the Medical Protection Society