The Compensation Culture and the NHS.
The Treasury has had a nasty shock this week, bought on a fit of the vapors, it has.
“Claims for clinical negligence outstanding at 31 March 2010 could cost £15.7 billion, or 15 per cent of the government’s total provision for future expenses arising from events that have happened in the past,” the report warns.
“The Treasury … did not know that clinical claims recorded by the NHS Litigation Authority had increased by some 31 per cent in 2010/11 or what plans were in place to reduce liabilities for clinical negligence.”
A large proportion of the clinical negligence bill is the result of errors that have left babies brain damaged – an area where the cost is rising as advances in medicine mean these children live longer and therefore cost more.
To which I would say that actually, a large proportion of this £15.7 billion bill is the result of believing that having a baby is like getting your Toyota serviced. Something that can be quantified in advance and should have a manual for technicians – any deviation from the manual, and wallop, multi-million pound settlement. You ‘deserve’ a perfect baby, haven’t you gone through nine months of pregnancy to achieve it? – and now you are as aggrieved as any purchaser of a Gucci handbag with the seams coming undone.
NOW! PLEASE READ THIS BEFORE COMMENTING.
I do not in any way suggest that the State – and society – should not help to bear the cost of supporting a badly disabled child where needed.
However, I am totally against the notion that the sad birth of such a child should be the occasion for a windfall if the lawyers can point their fingers in the right direction, to illustrate some deviation from the manual.
Fault! Fault! Fault they scream – and if they have got it right, some 12 years, Yes! 12 years on average, later around 6 million (on average) will be removed from the NHS budget and passed to the Court of Protection, pausing only to drop off around £2 million into the hands of the lawyers. Once in the court, it will be administered by a stream of ‘equal opportunity/free movement in Europe’ men and women who signed on at the job centre six weeks ago, who will decide in their wisdom what you can use the money for. More often than not it will be administered by the same lawyers who already took a £2 million rake off, in return for a regular dip into the pot each year.
That is the reality that you are supporting should you wish to say ‘its only right that they should get compensation’.
When/if the child dies, the balance of the pot, carefully costed to include the prohibitive projected cost of supporting said child in 2075 or whatever date they managed to find experts to convince the judge that this child ‘could’ live to, will be handed to the parents.
Since the ‘assets’ are held in the Court of Protection, they are not ‘under the control of’ the child, they are not considered ‘assets’ by Social Security – and so Disability Living Allowance and all the other State run schemes to support the disabled, still apply. I was amused to see the Daily Telegraph the other day holding their nose and pointing a sneering finger at a couple of Lottery millionaires still claiming Disability Living Allowance; they should take a peek inside the Court Funds Office, there they will find literally hundreds of ‘millionaires’ being supported by the state…
On the other hand, if they can’t find anyone to ‘blame’ – there is no compensation. The child ends up sleeping in exactly the same sort of bed, sitting in the same wheelchair, attending the same ‘special school’ as the child who received millions; and is just as disabled. Ah, I forget – the parents don’t get to buy a hideously expensive house in the name of the child, and cover the floor in shag pile carpet…
Money doesn’t compensate these sorts of situations. I feel fully qualified to expound that view, since I was also the ‘victim’ of a medical ‘accident’ 40 years ago. I went into hospital for a simple gynae op, and thanks to someone with a similar name, came out minus my womb. For a 23 year old girl, that was pretty devastating – but what difference would money have made? Anyone in the same position today would be knee deep in lawyers – to what avail? Should I have bought some children?
There are some situations where money can alleviate the problem – again, another declaration of conflict of interest, before someone brings it up. I sued the government when it quite deliberately put me in a position where I lost thousands of pounds. I won too, or at least they came second! But suing for breach of a contractual matter is quite different from suing because a birth didn’t go as you would wish – something that cannot be put right with money. Nor would I have sued had I been able to 40 years ago.
People do make mistakes. It is human nature. The Captain of the Costa Concordia made a mistake, Fred Goodwin made a mistake, the man who fitted your oil filter may well have made a mistake, Gordon Brown made mistakes, handing over a tump of money to the victims of these mistakes, and their lawyers doesn’t put them right, it merely denudes, in the original matter, the NHS of the funds to do what it is supposed to be doing, curing sick people.
If it stopped the mistakes happening in some magical manner, there might be some logic to the compensation culture, but then if it did that, we wouldn’t still have massive claims for the same sort of mistakes 20 years later, would we?
If the lawyers weren’t taking a third of that £15 billion, think how many more nurses we could have on the wards, how many more medications we could afford for sick people, how much more help we could give to the disabled? I’m no great supporter of the NHS, but I do think they should be immune from these compensation claims – and ‘uman rights claims.
Would it not be better if a budget was set aside from the health budget for ‘no fault’ compensation and the money used to help those with direct physical and financial need?
What think you?
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1
February 7, 2012 at 12:19 -
Hi,
I agree that no-fault compensation would be a good way forward, however I cannot agree that the NHS should be immune to civil claims.
What about psychiatric patients …
Often ‘Human Rights’ or clinical negligence claims are their only remedy for serious breaches of their rights. Several people, e.g. Kay Sheldon, only had wrong diagnoses withdrawn after commencing clinical negligence claims.
– Sam
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2
February 7, 2012 at 13:00 -
As an eeeeevil , greedy clinical negligence solicitor it falls to me to tell you that the suggestion that lawyers take £2m from a £6m settlement is utterly barking mad. DO NOT BELIEVE WHAT YOU READ IN THE DAILY MAIL.
This is not America. Lawyers do not take their fees from the client’s damages.
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5
February 7, 2012 at 13:10 -
What happens in other EU countries when healthcare mistakes are made?
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6
February 7, 2012 at 14:02 -
A couple of years ago my son managed to “twist” his ankle by running (as small boys often do!) The swelling got worse overnight so a trip to A&E was in order. After a long wait we were told by an RAF doctor that it was just a sprain, go home and walk on it. Later that day, still in pain and swelling like a balloon we headed to the local walk in centre…. who told us the same. The next day (Sunday) still the same swelling and now bruising etc but the hospital now refused to see us as he had been “diagnosed” the day before. Monday morning I begged the GP to humour me and refer us for an X Ray…. he did and lo and behold my little whirlwind had broken his ankle!
After a weekend of him not being able to walk, being told to make him walk on it and that “it’s a bad sprain”, all the stress and strain of trying to get medical proffesionals to listen to me as “mum knows best” was my first thought “I shall sue!”? No, my only concern was that he now had the right treatment and care. No amount of money would have undone what had happened, and if anything it would only make resources more stretched, waiting times longer and be even less likely to get a proper diagnosis next time we head to A&E.
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7
February 7, 2012 at 15:00 -
Nick Howarth is right when he says that “Lawyers do not take their fees from the client’s damages”. They are paid by one of the parties, at the direction of the Court. The Court may order that each side pays it’s own costs, or that one side pays both sets of costs. If an “offer” of settlement is made before the judgement but it is declined and it then proves to be more than or equal to the Court’s award then the usually the other side will pay both sets of costs from the date of the offer. Having said all that, if the NHS has lost and is ordered to pay say £6,000,000 damages then it may also be ordered to pay both sets of costs, another million or two? So if the figures quoted are just the damages, the legal costs need to be ADDED to them to give the total cost to the NHS.
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February 7, 2012 at 19:13 -
Where does the figure of £15.7 billion come from ?
Well, the Daily Mail kindly refer to a Government report which can be found here;-http://cdn.hm-treasury.gov.uk/whole_government_accounts200910.pdf.
Tucked away on page 123 is the rather more accurate story. The figure of £15.7 billion is …’Expenditure (which) is likely to be incurred over a period of more than 20 YEARS’. (My emphasis).
At least the lawyers have to succeed to get the bonus – NHS managers don’t.
As for the legal fees , after the no win no fee reforms these will be around £100 million per annum. so over a 20 year period they will be £2 billion not £5 billion.
To put it in context, total Government over the same period will be £15,000 billion.
The total cost of claimant clinical negligence lawyers fees will be 0.1 % of GDP over the nex 20 years.
All civilised countries have to have a legal system or else they end up like Somalia or Pakistan.
Civilisation costs money.
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9
February 7, 2012 at 22:21 -
Equally it cannot be right that public bodies are fined when things go wrong.
What purpose is seved by fining Railtrack, say, for an accident that occured under the previous regime?
Senior managers/directors claim that they deserve high salaries because of the ‘responsibilities’ that they shoulder, yet, when things go wrong, it is the body corporate and hence the customer/shareholder that bears the cost of the fine. If we are going to issue fines they should be levied on the responsible person at a proportionate rate, i.e. 1% of salary or the like.
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February 7, 2012 at 22:27 -
Unfortunately large organisations will frequently ignore errors or avoid taking appropriate actions unless and until they start to cost money.
I once had an accident at work – one of those stupid things that are bleedin obvious in hindsight. It was painful and scary for a while until I got to a specialist who told me what the problem was and fixed it. I called the site involved and suggested they tweak a wee part of their process to reduce possibility of recurrence. They pooh poohed me in an irritatingly dismissive and patronising way. I was having a ‘grumpy-pants’ rant to a pal in legal who helpfully pointed out I could claim – and that this would have the effect of requiring a proper report and actions arising. So I did. The result was that they had to do more than my modest suggestion and it cost them some money (not a lot – I didn’t lose a limb or anything dramatic
).
I wonder how many NHS actions come about because the bureaucracy of complaint management, inflexible approaches and instinctive denial in the face of obvious issues drives reasonable people to say ‘right, that’s it, maybe you’ll listen when I take you to court’? -
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February 8, 2012 at 11:26 -
I think people would be less inclined to sue if incompetence and neglect resulted in charges being brought and convictions and criminal records for all those in the relevant chain of command. When a hospital trust can kill hundreds and no one in a position of trust and responsibility is bought to book, it’s no wonder that punitive damages are sought as a substitute.
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February 8, 2012 at 20:08 -
I am deeply saddened by your hospital ‘mishap’, Anna.
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