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Wednesday 28 September 2016
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Compensation inflation: dealing with negligence claims

Legal & Finance

Karen Roberts
MBBS MRCGP LLB

Medico-legal adviser
Medical Defence Union (MDU)

Karen has worked at the MDU for eight years, where she has advised doctors on a variety of medico-legal issues, such as handling medical negligence claims, employing risk management techniques to help avoid some of the pitfalls of practice, and dealing with patient complaints. Previously, Karen worked as a GP in Newcastle-upon-Tyne

Copyright © MDU 2007

Two recent developments have highlighted the potential for rising compensation payments in medical negligence claims against doctors. In the first, the case of Thompstone v Tameside and Glossop Acute Services NHS Trust,(1) a patient successfully argued for a different way of calculating a compensation award, which, it has been reported, could add £1.7bn to the NHS liabilities for clinical negligence claims. The judgment may be appealed to a higher court.

In addition, legislation took effect in January 2007 that allows the NHS to claim back the costs of care from insurers and indemnifiers when a patient has received compensation. The new regulations will mean that when a person receives compensation for a negligent injury sustained on or after 29 January 2007, the NHS will be able to recover the costs of NHS hospital treatment and ambulances in connection with the injury, from whoever has paid the compensation.(2) If the Medical Defence Union (MDU) pays such compensation on behalf of a member, we will be obliged to pay these NHS costs.

Taken in tandem, these developments are likely to ensure that the trend for inflation-breaking rises in the size of compensation awards in medical negligence claims is set to continue. Looking at claims settled on behalf of MDU members over the last 30 years, inflation of the size of claims has consistently exceeded retail-price inflation. This is due to a number of factors, such as the increasing life expectancy of severely damaged patients and consequent care costs, and, perhaps more importantly, occasional step changes, such as the ones described above.

Of course, this rise in the costs of claims has to be taken into account when setting the costs of subscriptions. At the MDU, we take into account these changes in our actuarial forecasts to minimise any dramatic short-term effect on subscriptions. But in the longer term, they are bound to affect the cost of subscriptions, not least because changes sometimes have a retrospective effect, meaning the costs of claims already underway rise, as well as those brought after the date of
the change.

You might be relieved to know, however, that while the size of individual awards is rising, in the MDU's experience, the number of claims brought against our members and settled by us on their behalf is beginning to level out.

Receiving notification of a claim
If a solicitor's letter alleging professional negligence arrives at your practice, you may well be the first person to see the letter notifying a GP or other member of the clinical team of a claim. You may also become involved in helping the clinician to respond. It is important to know how to deal with such a situation and how you can help to support the person concerned.

Solicitors' letters can be written in a style that appears adversarial and aggressive. They are likely to contain criticism of one of your clinical colleagues and sometimes yourself or a member of the administration team. Try not to take the letter, the claim or any subsequent legal correspondence too personally and advise everyone else involved to take the same view.

The first thing for the clinician who is the subject of the allegations to do is seek professional assistance from their medical (or nursing) indemnity organisation. The legal process sets strict time limits, so it is vital to do this as soon as possible.(3)

It is advisable to avoid the temptation to send an angry, spur-of-the-moment response to the solicitor, and to discourage the clinician in question from a hasty reply. It is necessary simply to acknowledge receipt of the letter at this stage.
You can provide personal support to a doctor or other health professional in this situation. For example, a GP may find it helpful to discuss their feelings with you or a colleague, remembering the need to protect patient confidentiality.

Documentation required
If the claim is against one of the GPs, they should, as soon as possible, send their medical defence organisation (MDO):

  • A copy of the solicitor's letter or form, as well as any other correspondence with the solicitor.
  • A full account of their involvement with the patient. Sometimes claims arise many years after an incident and, if the GP cannot remember everything that happened, this should be explained. The GP should base their account on the contemporaneous notes, any recollection they may have of events, and, if necessary, their "usual practice".
  • A full copy set of clinical records, including a printout of computerised records. It is important not to annotate or amend the records in any way.

The Bolam test
To succeed in a negligence claim, a patient (known as a claimant) needs to establish that the doctor owed them a duty of care, that this duty of care was breached, and that the breach caused the harm or injury that is the subject of the claim. The standard against which a doctor is judged is whether his or her actions were in accordance with a responsible body of professional opinion practising in that doctor's field. This is known as the Bolam test.

In assisting with a claim, an MDO will often instruct an independent expert to provide a report on whether or not the doctor may be vulnerable to any criticism of their management of the patient. Reassuringly, many claims do not progress beyond the initial stage. In the MDU's experience, compensation is paid in only 30% of cases brought against our doctor members.

Compensation costs
The MDO will need to make an assessment of the value of the claim, which could include the cost of medical care and any loss of earnings. This will be based on the cost of restoring the patient, as far as possible, to the position they would have been in had the negligence not occurred. Compensation awards bear no relation to the "seriousness" of any failing that may be alleged on the part of a clinician.

It may be that the claimant or other members of their family are still registered at the surgery. The fact that there is a claim in progress should not affect the quality or type of care they are given. If in doubt, always advise your colleagues to contact their MDO for advice.

Below we explain the progress of a fictitious claim against a GP, which is based on cases from the MDU's files. Much will depend on the individual circumstances, however, and your MDO will often have dealt with similar cases before and can guide the doctor concerned through the complex legal process.

Receiving a claim can be upsetting for the person involved. Practice managers can play a key role in providing professional and personal support.

Case example
A seemingly unremarkable home visit during a GP's last days as a locum came back to haunt her when, three years on, her practice received a letter setting out a negligence claim.

The GP told her manager that she could only dimly recall the case. A 62-year-old retired man, with a long history of migraine, called complaining of a "splitting headache". He had taken some prescribed painkillers but they had done nothing to ease the pain.

The GP visited in the afternoon, and on neurological examination found no abnormalities. The patient was given a subcutaneous dose of a triptan and told to come back at evening surgery if the pain persisted.

The solicitor's letter explained that an hour after the GP left the patient's house, the man died of what was found at postmortem to have been a subarachnoid haemorrhage. The letter alleged that the GP did not carry out an examination and spent barely five minutes at the house, and that the GP should have admitted the patient to hospital immediately.

The GP expert instructed by the MDU was concerned that the headache was of a different type to the patient's usual migraine headache, and that the patient had never before requested a home visit for a headache. In addition, there was no record of a neurological examination having been performed.

However, the neurologist expert said that the nature of the brain injury was such that, even if the doctor had arranged for the patient to go to hospital by ambulance, the outcome would probably have been no different.

The GP agreed that given the sparse, incomplete notes, the fact that she could not recall the events, and taking into account the GP expert report, she would not be happy trying to defend her management in court. With this is mind, the claim was settled for a small sum.

Tips on dealing with a claim
If a clinician in your practice receives a solicitor's letter alleging negligence, then the following advice is recommended:

  • Don't panic!
  • Contact your MDO at once.
  • Never alter or amend the original records in any way; in your factual report you can clarify any points
  • as necessary.
  • Try not to take it personally – talking to a colleague, friend or partner may help, but you must always remember to respect patient confidentiality.

References

1. Thompstone v Tameside and Glossop Acute Services NHS Trust [2006] EWHC 2904 (QB).
2. The Personal Injuries (NHS Charges) (General) and Road Traffic (NHS Charges) (Amendment) Regulations 2006. Available from: http://www.opsi.gov.uk/SI/si2006/20063388.htm
3. Civil Procedure Rules – clinical disputes. Available from: http://www.dca.gov.uk/civil/procrules_fin/contents/protocols/prot_rcd.ht...