Why do patients make compensation claims?

07 Dec 2018

Clinical negligence claims continue to increase the strain placed on public finances. NHSR made a provision of £77bn in its balance sheet for 2017/18 – a vast sum on any assessment and which is treble that of four years ago. This figure of course only relates to the cost of claims arising from hospital treatment. GPs and those in private practice currently are indemnified by their Medical Defence Organisations or insurers, so the real cost is in fact far higher.

A large part of the reason for this massive increase is undoubtedly due to the reduction in the discount rate in March 2017, but nonetheless the costs associated with clinical claims are massive and threaten the ability of the NHS to continue as we know it. There is a real risk that high risk or pioneering procedures will not be done on the NHS for fear of the cost of litigation if things do not go according to plan. The detrimental effect on staff morale of claims is often huge.

It is against this background that NHSR has recently published the outcome of some research it commissioned to look in more detail at the reasons why patients pursue claims; what were the triggers identified and what were the patient’s objectives in bringing a claim? Clearly anything which improves the patient experience and reduces the strain on NHS finances must be worth exploring.

The research was undertaken by The Behavioural Insights Team but there were some limitations associated with the research:

  • Firstly, the researchers had a very poor response rate
  • No similar exercise was conducted within a separate group who might have brought a claim and did not.
  • Historic context. Most claims, 64%, related to incidents in or before 2013. Clearly a great deal has happened in the NHS since then, most notably the introduction of the statutory duty of candour. In addition, a patient’s memory of events may naturally have been affected by the passage of time since the incident complained of.
  • Those conducting the study recognised that in reporting their views and experiences there may be an element of social desirability. For instance when explaining reasons for bringing a claim, patients may not wish to identify the driver as financial compensation and instead refer to other reasons such as a desire to improve the system.

Incidents, explanations and apologies

The absence of an explanation of what had happened and an apology when something had gone wrong was a feature of the survey findings. Only 31% received an apology.

An invitation to the patient to a meeting with healthcare providers where an investigation had taken place only occurred in 49% of cases.

One can only hope that, given the historical context of the research that the same findings would not be replicated today.

Some 200 patients were interviewed in addition to responding to the survey. The interviews triggered questions of professionalism of staff and even bullying, dishonesty, in terms of covering up of incidents and the quality of the apology given.

If accurate these are certainly worrying. The team did not interview staff involved however and therefore these findings and assertions should be approached with a certain degree of caution.

Some of those interviewed stated that had a full apology been given at the outset a claim may never have been pursued. This is a recurring theme in clinical cases and if the lesson has not yet been learned by healthcare professionals this piece again highlights the need to be candid with patients when things go wrong – it may avert a claim being brought at all. 

Complaints handling

The overall feeling about the complaints process was negative: between 69-75% of those responding rated the response to the complaint as poor or very poor in terms of accuracy, empathy, speed of the response and level of detail in the response.

Opportunities to avert claims

Several things were cited which might have averted a claim being brought:

  • Correcting mistakes – some identified a wish for the error to have been corrected for instance by further surgery to improve a scar
  • A better apology and explanation
  • More honesty and transparency

The study also explored the main objective for patients bringing claims. 87% identified a desire to prevent the same happening to someone else; 80% stated the claim was brought to get an apology; 77% did it to hold the clinicians to account. Only 41% stated they pursued a claim to get financial compensation.

This throws up the question of how claimants are counselled about the legal process when they consult a solicitor regarding adverse incidents. A claim in clinical negligence can of course only deliver damages by way of compensation.

What is apparent however is that there is still work to be done in relation to complaints and apologies to improve the patient experience when things have gone wrong.

It is likely however that a more fundamental discussion needs to take place between healthcare providers and the public around the balance between the provision of healthcare for all through the NHS, and the rights of individuals to compensation when things go wrong, and what that compensation should be.

One thing is certain: doing nothing could well result in the end of the NHS and we will all be the poorer for that.

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Disclaimer: This document does not present a complete or comprehensive statement of the law, nor does it constitute legal advice. It is intended only to highlight issues that may be of interest to customers of BLM. Specialist legal advice should always be sought in any particular case.

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Sarah Woodwark

Sarah Woodwark

Partner,
Manchester


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