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No-fault compensation for Clinical Negligence

Posted on 03rd February 2021 in Medical Negligence

Posted by

Stuart Bramley

Partner and Solicitor
No-fault compensation for Clinical Negligence

An article in the Law Society Gazette from 2 February 2021 looked at the possibility of a total overhaul of the system of clinical negligence compensation within the NHS by ministers. Health minister Nadine Dorries told the health and social care committee that a review of the system was going ‘at pace’ and could involve all claims against the NHS.

The evidence session discussed ongoing safety concerns with maternity services in England following incidents at East Kent Hospitals University Trust and Shrewsbury and Telford Hospital NHS Trust, which our Medical Negligence team commented on.


Our co-Head of our Medical Negligence team, Partner and Solicitor, Stuart Bramley commented on the article, saying, “The current system of dealing with compensation for medical errors may have faults, but 'no-fault compensation' (NCS) is not the answer. This is an issue which is repeatedly raised whenever the cost of clinical negligence arises, with the last being less than 5 years ago. “No Fault Compensation Schemes – A Rapid, Realist Review” was published by the DoH. Although it led to no changes at all, it noted that schemes already in place in France and Sweden are, contrary to what many think, very much based on fault. A scheme in New Zealand omits the idea of blame but is only available to those in work, excluding many babies, children and the elderly who are left often very badly injured through the errors of others.

Although Nadine Dorries’ comments suggest that she is more concerned about fairness than saving money, many who support NCS suggest that it would reduce the costs to the Health Service. However, under the current system compensation is only paid to those who decide to take action; go through what can often be a lengthy and stressful process; and then succeed in establishing negligence. If instead every patient who had an adverse outcome received damages, the overall cost would rocket. The only way of avoiding that would be if the level of damages to each injured person reduced significantly, and compensation is very carefully calculated by both sides to ensure that the needs triggered by the mistake are properly addressed for life. NCS would not be a solution but rather an unfair and expensive system which the hard-pressed Health Service really does not need”.


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