Page 23 - PIC Magazine Winter Issue 14
P. 23

 One reason for the recent
increase in the cost of claims
was the government’s decision
to change the discount rate – the means by which future costs
and losses caused by an injury
are calculated. A very recent further change in the rate will provide a partial correction
to the rise in compensation payments. Another reason for
the increase is that the costs of professional care, equipment
and technologies to assist those with disability and injury, have risen much faster than general inflation. The principle behind awards of compensation for clinical negligence is to put the injured person in the position they would have been in had
the negligence not occurred. As technology advances there are better and more expensive ways of making good the damage. Sophisticated prosthetics can more fully re-establish a level
of mobility than was previously possible. But they cost more. Expensive eye-gaze technology can allow someone with severe disability to communicate when previously they would have
been unable to do so. Injured claimants are presented with ever more expensive alternatives to improve their level of functioning and quality of life. Care experts have also pointed the way
to more sophisticated and comprehensive packages of care for the most seriously disabled claimants. These packages
are designed to ensure that claimants are properly looked after, but the costs seem always to be increasing. Some argue that artificial caps should be placed
on the amount of compensation that can be awarded, but it
might be said that providing full compensation demonstrates the true cost to patients when clinical negligence occurs.
Clinical negligence law is compensatory. It is not a system designed to punish those responsible for deficient care. Often doctors regard claims for compensation as attacks on their general competence or integrity. They are not. Doctors are not found “guilty” or “struck off” by reason of a finding of negligence in a civil claim.
Clinical negligence law is compensatory. It is not a system designed to punish those responsible for deficient care. Often doctors regard claims for compensation as attacks on their general competence or integrity. They are not. Doctors are
not found “guilty” or “struck off” by reason of a finding of negligence in a civil claim. Because clinical negligence law is concerned only with compensation, it
is not necessarily the best means of inquiring into the truth of what happened
to a patient, let alone in arriving at recommendations for improving systems of care and patient safety. That is one reason why bereaved families place so much importance on Coroners’ Inquests, and why patients want more openness from the NHS when their complaints are investigated.
There are many ways in which the costs of clinical negligence litigation could
be reduced without affecting the balanced justice that the current law delivers. First, a transparent system of dealing with patient complaints would head off many potential claims for compensation. Second, early evaluation of claims by mutually respected experts could save a great deal of delay and cost. Third, early engagement in mediation and other forms of alternative dispute resolution would almost certainly reduce costs. Fourth, consideration should be given to allowing patients a right to sue the NHS, rather than having to decide which part of the NHS – which GP or which Trust – is responsible for their injuries. Some claims have to be brought against multiple defendants, all of whom operated within
the NHS when they treated the patient. This leads to too many experts giving opinions, and avoidable delay and expense.
There are also ways in which the knowledge gained from litigation could be used to benefit patient safety, and therefore to reduce patient harm and the number
of potential claims for compensation. Thousands of expert reports are produced
 every year for the purpos
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This article is adapted from the author’s Introduction to his recently published book Clinical Negligence Made Clear: A Guide for Patients & Professionals available now from Bath Publishing.
whose lives it affects und
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the legal system and do not regard it as something
mysterious and to be feared. Nigel Poole QC
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