How are medical negligence compensation claims changing?

Many have speculated that a culture centred on compensation claims has been nurtured in the UK in recent years – and the many adverts broadcast on television and radio promoting legal firms that specialise in compensation seem to attest to this. In the face of a steady flow of cases, seeking compensation for everything from road traffic accidents and flight delays to workplace injustice, the Government has ordered a review into laws surrounding medical negligence. This move could signal the beginning of an overhaul, affecting legal definitions of negligence, and the way subsequent claims for compensation are processed in the future. Here, the specialist team at provide a breakdown of the current compensation climate, and the direction it may take in next few years.

Governmental review

This month, Health Secretary Jeremy Hunt ordered an urgent review into issues surrounding medical negligence and malpractice, following on from Dr Hadiza Bawa-Garba’s deregistration after being found guilty of making mistakes that lead to a young boy in her care dying of sepsis. She was initially suspended from the register for twelve months, but has since been struck off for good after the General Medical Council appealed the decision.

Hunt has expressed concern that the increasingly impoverished NHS and its staff are buckling under the many pressures facing the service, having an obvious knock-on effect on the patients it treats. He argues that staff shortages, excessive working hours, and continuous funding cuts are putting NHS staff in impossible positions, and their lack of resources are impacting their ability to deliver the best quality care to patients.

He also suggests that the threat of such heavy consequences for medical professionals who make mistakes on the job will prevent them from seeking assistance when they need it, and carrying out honest self-appraisals. Hunt worries that medics will begin suffering in silence for fear of having their lives and careers taken away from them. He announced to the House of Commons that they must “ensure there is clarity about where the line is drawn between gross negligence manslaughter and ordinary human error in medical practice so that doctors and other health professionals know where they stand with respect to criminal liability or professional misconduct.”

The numbers

Although public opinion is united in the idea that compensation claims are on the rise, these assumptions have actually been verified by a number of independent surveys. Research found that in the period from  2008 to 2013, cases seeking compensation for medical negligence had increased by 80%, and that in the twelve months between 2012 and 2013, a 20% surge in medical negligence claims was recorded. These figures evidence the continuous rise in compensation claims of all kinds, including those pertaining to medical negligence.

More recent figures have caused concern for the NHS, with research by the NHS Litigation Authority finding that between 2015 and 2016, a record amount of compensation had been awarded to those affected by medical negligence, resulting in the NHS paying out a staggering £1.4 billion. The previous year had seen a further £1 billion paid out in compensation, further indicating an ongoing increase in claims filed against the NHS.

In the financial year from 2016 to 2017, Northern Ireland’s health trusts were ordered to pay out £94 million for medical negligence cases, with £70 million in damages and a further £24 million covering legal costs. Meanwhile, experts have warned that the NHS could end up being bankrupted by the latest medical negligence bill it has been given, this one totalling £65 billion.

Impact on claims

Medical professionals and the organisations they belong to are understandably concerned for the future of the UK’s medical services and the quality of care it can provide to those who are in need. There is a clear understanding of that the rising costs of providing quality care are undoubtedly offset by the levels of compensation being paid to those affected by medical negligence. This is not to say that they want to completely abolish compensation for those affected by medical negligence, and the leaders of the NHS Confederation, the British Medical Association and the Academy of Medical Royal Colleges are imploring the Justice Secretary and Lord Chancellor to make changes to laws.

In their written appeal to the Government, they say, “The rising cost of clinical negligence is unsustainable and means that vast amounts of resources, which could be used more effectively, have to be diverted elsewhere. We fully accept that there must be reasonable compensation for patients harmed through clinical negligence, but this needs to be balanced against society’s ability to pay. This money could be spent on frontline care. Given the wider pressures on the healthcare system, the rising cost of clinical negligence is already having an impact on what the NHS can provide.”

This could lead to a reform of laws that control the amounts awarded to victims who make a medical negligence compensation claim. A similar overhaul is currently being carried out on whiplash compensation claims, following the impact of claims on insurance premiums. Changes have been made to legislation, capping the amount awardable to people suffering from whiplash. This may be the solution applied to the NHS crisis, which would then have an impact on future compensation claims based on medical negligence.

What now?

The medical, legal and public forces are now coming to a head, and are likely to collide quite dramatically. It is a precarious time for both the medical and legal sectors, as there is much change on the horizon but, as yet, little clarity about what it will involve. Legal experts should start preparing for the possibility of future claims being capped or otherwise sanctioned, and consider the ways in which this will affect the services they offer, they way they work and the people they choose to represent. The Governmental space should be watched closely for movement, as the ball is very much in that court now, and only time will tell where compensation claims can go from here.