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Clinical negligence reforms could help hospitals learn and prevent babies deaths

Posted on 11th November 2021 in Medical Negligence

Posted by

Stuart Bramley

Partner and Solicitor
Clinical negligence reforms could help hospitals learn and prevent babies deaths

Speaking during a webinar hosted by law firm Irwin Mitchell, former health secretary Jeremy Hunt MP, has claimed that hospitals are not learning from their mistakes due in part to time-consuming clinical negligence litigation.

Jeremy Hunt said that, England and Wales should follow the likes of Sweden by taking negligence out of the equation altogether and paying compensation much sooner after the harm has been caused, with the current adversarial system potentially causes serious harm to hundreds of babies every year because necessary changes are taking years to be implemented.

 

Jeremy Hunt said, “In Sweden when a child is born severely disabled, they are able to access compensation without having to get a court to agree there was clinical negligence. You get that compensation as long as the clinicians agree there was a mistake made but they don’t have to accept there was clinical negligence.”

“Families were understandably desperate to get compensation because of the huge financial burden of bringing up a severely disabled child, but they are told the only way to get that compensation is by proving clinical negligence, which necessitates lawyers’ involvement. For the most difficult cases it can take easily five years – that is five years when people are fighting in the courts rather than using the knowledge from that.”

 

Tozers’ co-Head of Clinical Negligence, Stuart Bramley, commented on this, “Reading this, I was reminded of the old saying that Man is the only creature to trip over the same stone twice.”

“Politicians seem intent on tripping over no-fault compensation every few years. Jeremy Hunt is repeating the same mistaken ideas that have been considered and rejected often before. If anyone wished to introduce negligence-free compensation in order to take the pressure off busy clinicians, the easiest ways to do so would first be to make the system safer in the first place; and secondly an acceptance that there has been an avoidable error much earlier than presently occurs. Despite Mr Hunt’s extraordinary claim that hospitals are “fighting in the courts rather than using the knowledge from that”, the reverse is true. For more than 20 years, the defence of medical claims in England and Wales has been centralised, so that NHS Resolution (formerly the NHS Litigation Authority) in addition to investigating and deciding to fight or settle claims will cascade the lessons learned across all members. A medical mistake in Newcastle will improve the provision of care in Newquay. Fighting in the courts doesn’t prevent using the knowledge from that, it enables it.”

“The legal costs of clinical litigation are rising for a variety of reasons but prominent amongst those is that claims are defended for too long before being settled and patients compensated for what are often life-changing injuries. NHSR data confirms that well over three-quarters of claims that have to be issued at court will then settle, a delay in the process that wastes millions of taxpayers’ money.”

“The Swedish model is often suggested as the way forward. It would be, if the intention is that the medical negligence system become a form of State benefits for injured patients regardless of fault. But it would massively increase the cost – at present a small proportion of Health Service injuries lead to damages being paid. No-fault compensation would result in damages for every case. If anyone is injured because someone crashes into their car, it is only right that they get compensation. Jeremy Hunt’s proposal is the equivalent of the driver being compensated when he crashes his own car. In my view, that is not only an injustice, it is an unaffordable one”.

 

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