A quarter of NHS budget held for negligence claims? But ‘sorry’ would go a long way for patients

More frankness would improve amount of litigation. Discussion by Shutterstock

“It may seem a strange principle to enunciate as the very first requirement in a hospital that it should do the sick no harm.”. So wrote Florence Nightingale in an 1863 publication. Yet litigation against hospitals for clinical negligence claims accounts for around £2 billion a year and it was recently revealed that the NHS sets aside £26 billion, a quarter of its £113 billion budget, to cover negligence claims. The number of clinical negligence claims has nearly doubled since 2009-10.

Having a sophisticated risk management policy for the NHS is something that seems to surprise some. But it took a good 60 years to appreciate that the service does potentially hazardous things to people, some of which go wrong within an era of rising patient expectation. Seeking compensation for hospital errors is therefore no source of amazement. But what is driving such high costs and budget allocations?

Who’s liable for mistakes?

For the past decade we have witnessed an accelerated approach to NHS clinical safety and of introducing a programmed system of mandatory national reporting on the things that result in harm to patients. Implicit within the arrangement is the concept, imported from the airline industry, of also reporting the “near miss”. So there are moves to increase patient safety in the NHS.

Clear run. Steve Parsons/PA

Historically, health services worldwide have misjudged the unintended damage inflicted on patients through what are called euphemistically “adverse events”. Prosaically these happenings indicate that “Mr Cock-Up” was in town and we unintentionally made a total mess of things. The emphasis therefore, is one of enhancing the quality of care by learning from these harmful happenings and making treatments safer in the future as a result.

But the NHS is an opaque and difficult environment when it comes to explaining itself when performance is amiss. Doctors, nurses and therapists are bound by a code of conduct with very strict regulatory powers concerning their actions. However, a great deal of NHS care is delivered by cheaper untrained, unregulated healthcare assistants and overall management resides with professionally unfettered executive bosses. This means that the key deliverers and key paymasters are unaccountable unless they conspicuously break the law.

This has spawned an NHS blame culture that is deeply ingrained. Rather than trying to estimate the reduction of risk, the tendency when things go awry is to find a culprit and apportion blame – generally on a qualified professional who will be judged under an ethical code of conduct, rather than a manager. Not arguably the best way to prosecute such delicate matters in a £100 billion organisation.

In practice, the tendency is to hush up lapses be they clinical or managerial in source. Hence when things do go wrong the capture and analysis of information is at best of dubious quality. Weak systems of reporting create the conditions for inevitable error for about 10% of all hospital admissions that are complicated by critical incidents in which damage is caused to patients.

The recognition is that human error is complex but unavoidable from an amalgam of technical, environmental, organisational, social and communication factors rather than the maleficence or negligence of single individuals who end up carrying the can.

Sorry is the hardest word

It is this set of circumstances that force the NHS to hypothesise soaring amounts of cash to settle for negligence claims, thereby diverting resources that are needed desperately for frontline care.

Litigation is rising and “no win, no fee, ambulance-chasing lawyers” are accelerating the volume of suits. A whole arm of the service, the NHS Litigation Authority exists to try and secure mediation to resolve legal claims as quickly, quietly and as cost-effectively as possible. And it is this authority that handles the budget set aside for claims.

Most people go into hospital hoping to be well looked after, yet unfortunately in some cases this does not happen as a result of neglect, carelessness, forgetfulness and laxity on behalf of staff – and some patients suffer significant harm leading to litigation.

Obstetric-related claims for example comprise 33% of the burden for negligence payments – the highest area of expense along with gynaecology – and in recognition of error, lump-sum awards amounting to millions of pounds are paid out to meet the lifelong needs of children injured at birth.

The origins of litigation reside in a time-honoured system whereby the NHS investigates itself. The efficacy of its complaints procedures has been likened in usefulness to those of a grave robber in a crematorium. There is an overwhelming NHS reluctance to apologise for blunders in the first instance. It thus requires a complainant to brief a solicitor to seek proper arbitration.

The NHS England ombudsman has said that in the 2011-12 period there were 50% more complaints from people who felt that the NHS had not acknowledged mistakes in care. These people may have been appeased with a sign of contrition and an explanation of why the slip-up occurred. Instead “doctor knows best” still typically prevails and the patient is told to stop moaning.

But denying frankness forces complainants and the NHS into lengthy, expensive litigation that might have been solved at source. So when it comes to the NHS, sorry is perhaps after all, the hardest word to say.