The BBC this week carried yet another article on the rising cost of clinical negligence claims in the NHS, which the Department of Health describes as “unsustainable”, with others calling for a “fundamental reform” of the system.

The Association of Personal Injury Lawyers (APIL), which includes clinical negligence lawyers, was quick to respond with interviews on national and regional radio programmes, with Suzanne White saying that:

“Failures in patient care are behind the NHS’s compensation spend, not injured patients’ right to redress”.

Fewer injured patients would lead to lower costs of litigation.  The BBC article implied that litigation costs took up nearly three quarters of NHS England’s annual budget, which would not be possible. John McQuater from APIL explained;

“The figure isn’t really comparable.  The costs figure refers to claims paid out over a number of years, if not decades, whereas the budget is for a single year”.

Both Suzanne and John highlighted the lack of progress in reducing the number of babies who suffer brain damage at birth due to negligence, and their consequent substantial care needs.  Half of the NHS’s compensation bill is attributed to these claims.  The topic of stillbirths and neonatal deaths have been highlighted of late with events at Shrewsbury and Telford Hospital and East Kent.

The NHS regularly comments on how compensation payments are increasing, but it is not as simple as the obvious “Well, try not being negligent then and you won’t have to pay compensation at all”.  That could be said, but it is a counsel of perfection and isn’t going to happen; we accept that. Errors will always happen.

But there are 3 points to make.

First of all, injured patients need financial compensation.  Compensation is only payable where someone has been injured due to negligence and that negligence is either admitted by the hospital or proved after a detailed trial.  Sometimes the NHS does pay compensation with no admission of negligence, but that is their choice.  Compensation is not payable where known risks which the patient has been told of and consented to, occur.  This is not negligence.

Secondly, the hospital is only required to reach a “reasonable” standard of care in their treatment of patients. Surely asking for “reasonable” care is not -well, unreasonable?

Thirdly, there are only two ways of obtaining compensation.  Either the hospital agrees there was negligence, or a Court makes an award in successful claims. The amount is either agreed with the hospital/NHS or the Court arrives at a suitable award.  The Claimant cannot therefore be awarded MORE than they “should” be.  If the NHS agrees on a figure for compensation, then they must think it is a figure they want to and are willing to pay.  So, the figure is in their own hands.  If a Court makes an award, then again, one assumes it is the “correct” figure and both parties have to either abide by it or use the appeal system, which would be unusual.

Claimants therefore CANNOT hold the NHS to ransom until they pay a figure only the Claimant thinks they should have.  In many cases, the figure accepted can be less than a claim might be “worth”, but Claimants can have their own reasons for acceptance, which we respect.

Costs of treatment and care for injured people are increasing, but that is due to market forces, over which Claimants have no control. They can only access what is available and have to pay the going rate for much needed help, often 24 hours a day. Claimants injured during NHS (or private) treatment cannot be held responsible for their own injuries, but they have to cope with the consequences themselves as the NHS cannot and this requires sometimes substantial amounts of money each year.

There is no easy answer to rising costs as is they are multi- factorial, not the Claimant’s “fault”.  It is quite wrong of the NHS to try to “blame” claimants injured by the NHS itself for the costs involved in looking after these patients afterwards. They cannot provide the care needed, yet they complain about the cost of dealing with the aftermath of their own negligence.  The NHS cannot avoid both.

Brenda Gilligan is accredited to the Association of Personal Injury Lawyer’s specialist Clinical Negligence Panel and is the only clinical negligence lawyer in Lincoln with this accreditation.  She is also an accredited Personal Injury specialist with APIL.

For help and advice on clinical negligence claims contact the Ringrose Law Clinical Negligence Team.


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