The number of new claims reported to the NHS Litigation Authority (NHSLA) rose by 6% during the year 2011/2012 according to the Authority’s annual report to 9,143.
It could be that patients are becoming more ready to persue Clinical Negligence Claims. However that is unlikely. Government figures suggest that only a tiny percentage of people injured by negligent medical accidents seek compensation. The ‘compensation culture’ has always been a myth. Another might be an increase in the number of medical accidents. It is quite likely that with cost-cutting and our health service becoming increasing fragmented that the number of errors will rise but it is hard to say at present whether that is the case.
The NHSLA thinks the reason in fact lies elsewhere. It thinks that the growth is due to earlier reporting of claims and incidents by hospitals which has enabled it to resolve claims more quickly than before and at lower cost. If this is true it is a positive step forward from a hospital culture which has tended to be defensive about mistakes, often leaving patients in the dark about what exactly has gone wrong.
Can we expect the figures to rise further? If it was all down to earlier reporting they would probably not. However the law of unintended consequences will probably apply to the government’s reforms of the legal system – unintended although all too foreseeable. In an attempt to keep down the cost of claims and make it harder for claimants to obtain full compensation, the government is changing the rules whereby the loser to Court proceedings generally pays the winner’s costs. Although claimants winning claims should still recover most of their costs, claimants losing claims will not always be paying the legal costs of the Hospital Trust they sue.
One of the unintended consequences of that change will be that, freed from the risk of paying their opponent’s costs if they lose, many more people will try to bring complex claims with little merit. At the moment the risk of paying costs is a strong incentive to use Clinical Negligence Solicitors who will be able to obtain insurance against that risk – but only if the claim has merit. Good Solicitors therefore act as a filter against poor claims, a filter which saves the NHS enormous sums of money.
We can only wait to see what happens in April 2013 when the new rules come in but my prediction is that the NHSLA report for July 2014 (by which time the reforms have bedded in) will show a sharp rise in the number of claims and an increasing costs-burden for the taxpayer.
