​Clinical negligence reform – Part 3. alternatives to civil litigation

iangunn Mar 31st, 2022

During the session that took place on 11th January 2022, the committee heard about the alternatives to litigation for medical accidents in New Zealand, Sweden, the US State of Virginia and Japan.

The alternatives considered are either avoidable harm or no-fault systems. The committee Chair expressed concern that if entry into a scheme is automatic, they would be too expensive; not everyone who suffers an adverse outcome in England makes a claim.

Experience in New Zealand was that a little over two-thirds of claims made were accepted. The main reason for rejection is lack of evidence that an injury was suffered. Claims where a person is entitled to receive weekly compensation or attendant care or domestic assistance are reducing compared to claims coming in. In other words, serious injury claims, which cost the most, are reducing. It was felt that it was too early to conclude whether this trend is the consequence of systemic learning of patient safety lessons from serious claims, but that is the desired outcome.

In Virginia, the birth injury programme has been established for 35 years. Entries into the programme have levelled off at 8-10 per annum for the last 15-20 years. There is a similar scheme in Florida, but it was considered that other states had not followed because of pressure from trial lawyers. In Virginia there was some initial opposition but the threat of withdrawal of professional indemnity insurance for doctors meant it was welcomed by physicians.

In Japan, there was a lot of opposition initially, especially to publication of an investigative report into what went wrong. There was fear that patients would use resources provided by the compensation scheme to fund litigation, as the right to take civil proceedings has been preserved. However, actual experience has shown a reduction in lawsuits through sharing investigative reports. As a result, damages payments have reduced.

In Sweden there has been practically no opposition since the introduction of their scheme in the late 1960s. Medical professionals are encouraged to assist patients filing a claim when there has been an unexpected outcome. Critically, there is separation between supervision at the individual level and compensation at a systemic level. This means professionals need not fear for their career by admitting something has gone wrong, and actively assisting to put things right for the patient. The Swedish system explains what happened, sends a signal that “we are sorry we did this and we are doing preventive work”. It was claimed the system is cheap to run, inclusive and expedient.

There was a common theme to this evidence, which is that each of the alternatives attempt to deal with system failure, and to use adverse outcomes to learn at the systemic level to improve patient safety.

This gets to the heart of the problem with the tort-based system, where individual fault must be established. The case of Dr Bawa Garba was referred to as a prime example. A trainee paediatrician, Dr Bawa Garba, was responsible for the care of six year old Jack Adcock, who had Down’s syndrome and a heart condition. The doctor was found to have been responsible for a series of errors which led to Jack’s death. At a criminal trial, the doctor was convicted of gross negligence manslaughter, and handed a two-year suspended sentence. However, in this case, there were systemic failures including:-

  • Difficulties with the IT system used to review test results and staffing issues;
  • The on-call consultant was not on-site until the afternoon and the other registrar due on duty was attending a training day, with no cover provided;
  • Dr Bawa-Garba had worked her 13-hour shift without a break; and
  • She had just returned from maternity leave to a hospital which was new to her, having received no induction.

This case illustrates the problem of a single individual being held accountable for an error of judgment when systemic failure occurs. As a result, the system does not learn, patient safety is not improved and it raises the concern that professionals will be less frank in reflecting on mistakes.

This failure to deal with issues at a systemic level was also covered in the evidence of Sir Ian Kennedy, which was dealt with in my previous post, dated 1st March 2022.

What is less clear is whether there is any appetite in England and Wales to make radical changes to the current system. Maria Caulfield MP, Minister for Patient Safety and Primary Care since September 2021, gave evidence at the session on 1st February 2022. The Minister was asked by Chair, Jeremy Hunt MP, “Cutting to the chase, are you up for fundamental reform to bring down the cost and save babies’ lives?”. This is what she said:

We are looking at the new data. When we launch a consultation, it will be based on the current data. We are open to all options. One of the concerns I have, if you look at the table, is that even in countries that use similar systems to us right now—Scotland, Canada and Australia, who use a tort-based system—their costs per capita are significantly lower. There is something in our system that means the cost is much higher. Being honest with the Committee, we are not quite sure what those factors are. We are improving safety and that does not seem to be reducing the cost. The compensation levels that patients are getting are pretty even; they are going up a little bit, but not significantly. It is the legal costs that are the significant piece of why they are rising.

Other schemes, like the avoidable harm schemes or no-fault schemes, have significantly more claims. The whole purpose of them is that it makes it easier for people to claim, but they are often capped at a limit. I think the upper limit for a number of the schemes is £1 million, which would be less than some of our patients get. They get full compensation.

I am not against any scheme; we want to look at every single option. The concern that I would have is that until we get to the nub of the problem as to why our cost per capita is so much higher, if we move to an avoidable harm or a no-fault scheme and if those rates of cases went significantly higher, we might end up paying significantly more in clinical negligence and taking even more money away from frontline services. We are really keen to deep dive into this and find the nub of the problem. That is why inquiries such as this are helpful in looking at all the aspects.

A rather testy exchange between the Chair and the Minister followed these comments. It will be interesting to see whether the Committee recommends moving to an avoidable harm or no-fault scheme in place of civil litigation for medical negligence. If so, it will also be interesting to see whether government is willing to accept such a recommendation, or put it to the bottom of the in-tray in the “too difficult to deal with” category.