Medical Mistake Claims - Simpson Millar LLP

Negligence Bill - When Sorry Is Not Enough?

Author: Neil Fearn  Bullet  Dated: 17/01/2014

The Health Secretary Jeremy Hunt has said that he wants to cut the NHS' multi-million pound bill for negligence claims by making doctors and nurses own up to their mistakes and apologise to patients.

But, when is sorry not enough?

What is the negligence bill?

The amount of money that is spent each year on providing compensation to those who have been let down by the NHS is called the 'negligence bill'. Jeremy Hunt has suggested that we need to shed the "closed defensive culture" in favour of an open NHS that learns from its mistakes, with safety at its core.

With high profile cases such as the Mid Staffordshire NHS Foundation Trust where 1,200 patients died and around 11 trusts on special measures because of the high mortality rates – we can see why in some cases, an apology is just not enough.

Isn't an apology human nature anyway?

In new guidance sent to hospitals in England and Wales, the suggestion is made that staff are hesitant to apologise. They put this down to the fear that by apologising they're admitting legal responsibility, or making the situation worse. However, it is made clear in these recommendations that "saying sorry is the right thing to do" and that apologising is not admitting you are legally at fault.

The NHS Litigation Authority who manages negligence claims has gone even further by saying that it is a moral thing to do. If your child has been born with cerebral palsy because of a botched birth, or you lose a limb because of poor care, an apology probably simply won't cut it. Especially when there are expensive on-going care considerations to be made.

Why can't the quality of care be improved?

The NHS have made strides to improve the care that they provide to its patients. Following the Stafford Hospital failures, Mr Hunt introduced the "statutory duty of candour". This duty means that healthcare professionals, doctors or nurses must inform families of errors in the way they or their loved ones were treated caused death or serious injury.

The guidelines leaflet suggests that an apology could prevent patients and their families from taking legal action by humanising the process and preventing patients feeling like they are stuck in a confrontational 'insurance style' trap.

More than £22 billion has been put away to pay compensation , but surely all this could be avoided if the quality of care was increased rather than money to subsidize poor treatment. If cases were investigated properly and in a timely manner along with early admissions, the negligence bill would not be as high as it is.

Cathie Delaney, a Partner within the Medical Negligence Department, Simpson Millar LLP said :

"I believe that the NHS complaints system needs complete revision, with mediation being offered, where appropriate, at the Complaints stage, which would assist the parties reach a solution. During the process, the parties could extend discussions into matters or proposals not previously considered such as early access to support services, therapies or medical assessment."

"This would only work in cases that are suitable to be dealt with in this fashion and would require skilled mediators to conduct the process."

"Early recourse to mediating cases would cut the cost of litigation and result in some claims being resolved in a more timely and cost-effective fashion. This would then allow specialist lawyers to concentrate their skills and expertise on the more high value, complex clinical negligence claims."

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