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Wednesday, 19 January, 2000, 16:14 GMT
Litigation: Next NHS crisis

"Doctors under huge pressures"

The tidal wave of litigation crashing against the shores of the NHS threatens a crisis which will put the on-going flu situation well and truly in the shade, experts are warning.

The government's Public Accounts Committee has reported that outstanding medical negligence claims against the health service amount to a staggering 2.8bn.

The current amount is likely to be more than 3bn, says Dr Gerard Panting, of the Medical Protection Society, given that the government's figures are a year old.

He told BBC News Online: "When they did the same exercise in 1998, they came up with a figure of 2.3bn.

"Which means that over the past 12 months there has been a more than 20% increase."

Opting for guaranteed safety over efficacity?
He said that both the numbers of claims against medical staff, and the amounts of cash awarded to claimants have increased over the past few years.

The MPS - which insures medical professionals worldwide against being sued, and is currently representing the surgeons at the centre of the Bristol inquiry - says there are a number of reasons for this increase.

For one, it believes that the litigious spirit of the USA has drifted across the Atlantic and is gathering pace in the UK.

Also, it is becoming much easier to the man on the street to seek out medico-legal advice, with many legal practices offering "no win, no fee" packages.

But although Dr Panting emphasises that medical standards have risen rather than fallen, he says that doctors in this country are "often under extreme pressure" and "often work beyond the times they are meant to".

Size of claims

So the issue of NHS funding directly impacts on medical professionals' abilities to carry out their jobs to maximum efficiency.

Dr Tom Leigh, senior medical claims handler for the Medical Defence Union - a similar organisation to the MPS - says that the number of claims being made over the last couple of years has shown signs of levelling off, although the amounts being claimed continue to rise. The largest award to date has been 4.5m.

Dr Leigh told BBC News Online that total figures claimed from health professionals could very conceivably continue to rise.

He said that this was because amounts awarded were based on their value as an investment, and so if the rate at which the invested award would grow was predicted to be low, then the amount awarded would be higher.

And the Court of Appeal is due to re-examine the kinds of amounts awarded as "general damages", and is likely to recommend an increase in them.

The NHS cannot afford to keep meeting the bills without making cuts ...
Although the UK is not in a situation comparable with the writ-loving USA, medical litigation in the rest of Europe is still trailing behind.

Figures published by the MDA indicate that medical negligence claims in the Netherlands are rising at 5% a year and an almost 8% rise in claim size - while France has seen a slow rise in claims, but "considerable" hikes in size.

Dr Leigh says it is important to realise that awards made in the UK are based on the patient being treated privately thereafter.

Dr Panting said: "If we were to follow the Dutch model where the state guarantees to provide care for the injured individual, regardless of who is to blame for the injury, then we would have a situation where the top figure of 4.5m could be reduced to 150-200,000."

But medical lawyers say that is just robbing Peter to pay Paul.

Paul Balen, a Nottingham-based medical negligence lawyer who lectures on "Why Patients Sue and Complain", told News Online that the purpose of litigation was not to demoralise doctors, but to ensure that standards were maintained.

He said: "The problem with the whole process is that it is disaster and litigation-led.

Informed by ER

"Society is undoubtedly more litigious, but I do not think it is fair of doctors to claim that they are being hounded.

"For a patient to prove there has been medical negligence, they have to prove that a doctor or health professional acted in a way that no other doctor would have acted.

"Society is much more informed about medical procedures now - they see Casualty and ER and Peak Practice and they have a much better idea of how they should be treated.

"The days when doctors could literally get away with murder because they were put on a pedestal have thankfully long gone."

But there are concerns that fearful of being sued, health professionals may choose to opt for the safest, but not necessarily most effective, method of treatment.

Professor John Peysner, principal lecturer at Nottingham Law School at Nottingham Trent University, said that in his time working for both complainants and the defence in cases of medical negligence, he had rarely come across "defensive medicine".

He said that medical negligence lawyers tended to feel that defensive medicine was the best medicine.

He added: "In the old days medicine used to be safe, but useless.

"Nowadays, it's very complex and it's dangerous. And as it gets more complex, the number of claims are going to increase."

Finding solutions

Clearly, the beleaguered health service can ill afford to pay vast sums of money in compensation when its professionals get it wrong.

Although Prof Peysner says that as the NHS becomes more experienced in litigation, it will better be able to manage it.

One solution to the situation, say the mutual associations, is to "streamline" the civil liability process.

They also say that risk management and assessment, to prevent problems before they start, could be stepped up.

And they say that investigating methods of arbitration other than the courts could find positive solutions for both the doctors and the claimants.

Professor Paysner said one area of "alternative dispute resolution" known as the "clinical reaction protocol" obliges the complainant to share information with the health authority.

He said that the protocol could result in a solution being found without recourse to the usual legal process.

He said: "It wouldn't be a case of something being settled out of court - less than 1% of medical negligence cases get to court anyway - it would mean 'cases' not even becoming legal cases."

But Dr Panting maintains that the situation is dire. "We are looking at a looming crisis of proportions that will make the flu epidemic seem like a drop in the ocean," he said.

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See also:
19 Jan 00 |  Health
NHS faces 2.8bn negligence bill
15 Oct 99 |  Health
Palsy guidelines may cut court trauma
18 Mar 99 |  Health
Huge rise in GP negligence claims
04 Dec 98 |  Health
Compulsory insurance for GPs and dentists
29 Sep 99 |  Health
'Curb medical law advertising'
03 Nov 98 |  Health
'Patients set for faster, fairer damages'

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