It has been a particularly grim year for the National Health Service (NHS). Always a political football, the ageing post-war welfare state has received more than its usual share of bad publicity and faced a growing barrage of criticism from disgruntled patients.
These patients have been doing more than just complaining to the national newspapers. In May the National Audit Office (NAO) produced a report detailing exactly how much time and money the NHS spends fighting clinical negligence claims – too much, it concluded.
Clinical negligence is clearly on the agenda. Within two months of the NAO producing its report, the Secretary of State for Health, Alan Milburn, unveiled what was described as a ‘root and branch’ reform of the system of clinical negligence.
Then only last month Legal Week revealed that the National Health Service Litigation Authority (NHSLA) is to take over clinical negligence claims for the NHS in their entirety, farming out all the defendant work to its 16 panel firms.
The Government’s motive for changing the system of clinical negligence is simple: money. With constant media comment about NHS funding and over-stretched doctors and nurses, it is in the political and economic interests of the NHS not to pay out billions of pounds in compensation.
The NAO found that NHS clinical negligence claims were lengthy and costly. As of March 2000 there were about 23,000 outstanding claims worth around £2.6bn. On top of that the audit office estimated that a further £1.3bn would be required for settlement of negligence cases that had already occurred but had not yet gone to law.
Cases tend to take an average of five-and-a-half years to settle, the report said. The total annual charge to the NHS accounts for the provisional settling of claims has risen by 700% since 1995-96.
Spiralling legal fees
The third important finding was that a high proportion of the NHS’s litigation budget was spent on lawyers. In 75% of claims closed in 1999-2000, where the total cost of settlement was under £20,000, more money went to the lawyers than the patients who were being compensated.
This has led to an increasing amount of
hostility towards lawyers and media talk of a “compensation culture”. David Davis, the Conservative chairman of the influential public accounts committee and Tory leadership challenger has been one of the most prominent critics.
Earlier this year, in a paper entitled ‘Killing the Compensation Culture and Saving Patients’, he called for an overhaul of NHS litigation. “The Government must protect the NHS from ambulance chasing lawyers by limiting the liability of the NHS and practising doctors from lawsuits,” he wrote.
“I am against the compensation culture,” he told Legal Week earlier this year (12 February). “We should restrict the rights of patients to sue first, and only in cases of clear gross negligence, not when there has been an unavoidable accident.”
However, Kerry Underwood, managing partner of Underwoods, a claimant firm, denies lawyers are to blame.
“There is nothing wrong with a compensation culture,” he argues. “People have a right to sue if they are damaged by the NHS.”
Underwood says that if the public know their rights and are able to sue, then organisations are forced to behave more responsibly. He also points out that it is not in lawyers’ interests to deal with small, time-wasting claims. His message is that if lawyers litigate, then it is because they have a case against the NHS.
Like many lawyers, Underwood is concerned that the legal profession is attracting opprobrium for defending NHS negligence victims when, in reality, it should be the health service that is criticised for making so many mistakes.
