The total cost of meeting successful personal injury claims made by patients treated by the NHS is rising fast, as is its proportion of the total budget. See the NHS Litigation Authority Annual Report
Payments in 2014/15 were £1.1bn and are predicted to rise by almost 30% next year. The projected current ‘debt’ for damages for the NHS is £28bn, around one fifth of total NHS expenditure and over £300 per head of the UK population. Around one third of the cost ends up being paid to lawyers who are entitled to claim payment of high hourly fees as well as a percentage of the payment to the patient. For claims under £10,000, lawyers fees are typically three or four times the amount claimed.
The amount of compensation is worked out on the basis that care
of a patient disabled by bad treatment is provided on a private basis, ignoring
the existence of the NHS. Loss of earnings compensation is bases on current
earnings, so that high earners are entitled to larger payouts. Payment for
mental distress can be judged to be many times that paid out for physical
injury, such as loss of a limb. The NHS cannot normally recover its costs in
cases that it wins, unless the claim is judged to be particularly vexatious.
Cases are judged on the so called ' balance of probabilities’,
(rather than beyond reasonable doubt as in criminal cases), and the natural sympathy
towards a ‘victim’ is a big factor which can affect
judgements. Compensation sums are now often greater than in the U.S. However if
the poor result of medical treatment is judged to be due to bad luck rather
than someone's fault, then the payment is nothing. On top of this the legal
process takes several very stressful years, and patients often gets nothing
during life, so that it is only the heirs that benefit.
As well as the direct costs to the NHS, there are huge indirect
costs. Hospitals will have their own risk management departments whose salaries
are not met centrally. Expensive
time is spent by doctors on elaborate multi page consent forms which patients can rarely understand. Huge effort is expended checking
patient identities multiple times, which is tiresome and distracts attention
from more important issues.
GPs pay for their own indemnity insurance, and those who do a lot
of weekend work are having to pay five figure sums for their insurance. The
total GP cost is around £300million per year. This cost is indirectly borne by the
NHS as these costs are taken into account when pay is adjusted.
But the major costs are in terms of tests and scans that are not
done because the doctor thinks they are likely to benefit the patient, but just
to reduce the likelihood of being sued. So as well as the huge costs, patients
suffer unnecessary and possibly harmful tests, and have to worry about harms of
treatment even when there is no realistic alternative. Just because of the very
small possibility of litigation. On average a GP will be sued only twice in his
or her whole career.
So the present system is an expensive disaster, that is good for
no one except lawyers.
But why should patients who are treated at no direct cost to
themselves, be entitled to make claims?
The standard argument is that the threat of being sued
helps drive up quality of care. Unfortunately, all the research done
in this area shows that there is no correlation between being sued and medical
competence.
The other claim is that the law of tort allows claims to be made against anyone who has harmed us. But when we go out horse riding or mountain biking we are used to making contracts in which we absolve other parties of responsibility for predictable adverse outcomes.
The other claim is that the law of tort allows claims to be made against anyone who has harmed us. But when we go out horse riding or mountain biking we are used to making contracts in which we absolve other parties of responsibility for predictable adverse outcomes.
So why can we not make such a contract a condition of NHS
treatment, and release so many billions that can be used for patient care, and
at the same time improve care by ending the 'cover my ass' culture. We could
also easily pay for a no fault compensation scheme as in New Zealand.
It would however be a major blow to the legal industry, and with
hundreds of lawyers in parliament I don't think it has much chance.
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