The Cost Of Medical Negligence To The Nhs

Since the Bolam v Friern Hospital Management Committee tort (civil) law case in 1957

set the basic legal precedent for medical negligence cases in the UK the NHS has had to abide by the requirement to provide an appropriate standard of reasonable care. The Bolam test expects standards which must be in accordance with a responsible body of opinion, even if others differ in opinion.

The Bolam test is one part of the process of deciding if there is basis to a medical negligence claim. The first step is that there is a duty of care between the doctor and the patient. This duty of care is now taken for granted in English law. The second test is one that must show that the duty of care has been broken and this is where the Bolam test is used. The third test must show that there is a causal link between the injury and the breach and the forth test must show that the harm was not too remote.

The Bolam judgement stated that if a doctor reaches the standard of a responsible body of medical opinion, he is not negligent. If the doctor has acted in accordance with best practice at the time then they cannot be found to have acted in a negligent way. If an NHS Trust fails to meet these requirements then it leaves itself open to being sued for medical malpractice.

The National Audit office has recently issued a warning that the National Health Service in England is facing a legal bill of up to 4.4 billion for medical and clinical negligence cases. The cost of legal pay outs by the NHS has risen by half a billion pounds in the last year. The NHS Litigation Authority deals on average with about 20,000 claims a year. On average cases are settled within 18 months.

However the figure can be misleading as it purely an estimate based on the outstanding claims against the NHS. Not all of these claims are likely to be successful and very few will pay out at the top level of the claim. Roughly 40% of claims are settled out of court.

The last set of accounts that show the real pay out for the clinical negligence claim against the NHS are from 2007-2008. The total paid out was 550,000,000 or which 384,000,000 was the compensation with the rest made up of defence and claimant legal costs. This total is under 1% of the total NHS budget. Treating patients who have contracted infections once in hospital is almost twice the level of the costs of legal claims against the NHS. The highest level of medical negligence claims in 2010 were for the following areas, surgery 39% of all specialty claims, obstetrics & gynaecology 20% and medicine 17.8%.

Although the totals are a small percentage of the overall budget there is still concern that the figures are far too high and that lessons are not being learnt from previous cases. The government has also removed legal aid for clinical negligence cases and is looking to restrict and reform the fees received by solicitors for no win no fee work. These two reforms could dramatically reduce the number of clinical and medical negligence cases brought against the NHS in the future.

Tony Heywood

by: Tony Heywood

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