A Study of Medical Negligence Claiming in Scotland

EXECUTIVE SUMMARY

Introduction

1.1 Scotland currently operates a fault-based compensation scheme for medical negligence claims, meaning that compensation is predicated on showing that the health provider was negligent. The current scheme is funded by NHSScotland, with Health Boards protected against disproportionate loss by the Clinical Negligence and Other Risks Indemnity Scheme (CNORIS), which was implemented in 2000. Crown indemnity was introduced in Scotland in 1989. Thereafter the liability for medical negligence claims has been handled on behalf of the NHS Health Boards, by the Central Legal Office (CLO).

1.2 The establishment of the No-Fault Compensation Review Working Group was announced on the 1^st June 2009, with the remit to consider the potential benefits of implementing a 'no-fault' scheme for medical negligence claims in Scotland alongside the existing arrangements. This report follows from research commissioned in order to inform the Working Group's review. The research has been conducted in three parts:

1. A comparative literature review of existing no-fault schemes (including new Zealand, Finland, Sweden and Denmark): Farrell, A-M., Devaney, S., and Dar, M. (2010) No-Fault Compensation Schemes for Medical Injury: A Review. Edinburgh: Scottish Government published in Volume II of the Working Group's Report and available at:
http://www.scotland.gov.uk/Topics/Health/NHS-Scotland/No-faultCompensation.

2. An empirical study of the views of key stakeholders and pursuers concerning the implications of a no-fault scheme, as well as a study of closed medical negligence claims under the present system

and following the Working Group's recommendations

3. Estimating the potential operating costs of the proposed no-fault system based on CLO data.

1.3 The need to consider the potential benefit of a no-fault scheme in Scotland arises from concern about a number of problems with the current system of resolving medical negligence claims in the UK. These include issues with claimants not pursuing a complaint or a claim, claims being delayed, claimants experiencing difficulties in funding claims, and expense of experts (NAO 2001, Symon 2000, Fenn et al. 2000). The number of adverse events and the number of claims paid out in Scotland are both low relative to the rest of the UK and other jurisdictions; nevertheless there have been suggestions that adverse events have been increasing in recent years (Aiken et al. 2001), as have claim costs (Symon 1999).

1.4 Fault-based schemes focus solely on the need to prove negligence, and it has been argued that this focus does little to improve the quality of care, produces defensive medical practices, discourages error reporting and institutional learning, and blocks transparency. It has been argued that no-fault schemes, which remove the requirement to show negligence, address many of these problems (Studdert and Brennan 2001).

Aims and objectives of the research

1.5 The research for this report provides an empirical analysis of the potential implications of implementing a no-fault scheme. The research consisted of four components, and the aims of each component were as follows:

1. Examine the views of key stakeholders on the impact of a no-fault scheme on: the generation of claims and their prevention (i.e. deterrence); impact on medical practice; sources and extent of delays in compensation; use of experts and lawyers in the system; cost drivers; and barriers to developing a learning culture.

2. Examine the views of pursuers concerning their: motivations for claiming; nature and impact of the injury; use of complaints procedures; sources of delay; relationship with and role of lawyers; access to interim payment; access to ongoing care and support; satisfaction with the process and outcome of the claim.

3. Analyse data provided by the CLO concerning closed files, focusing on: claims outcomes (payment of compensation; number of claims settled, withdrawn or repudiated); length of time to reach resolution; legal costs; and impact of solicitor specialisation.

4. Following, the Working Group's report provide estimates of the costs (as measured by the public expenditure implications) of implementing the Working Group's preferred No-Fault Scheme (NFS) based on plausible assumptions.

Methods

1.6 This report presents the first empirical data on medical negligence claiming in Scotland, and is the first attempt to triangulate data from pursuers, other stakeholders and claims in any jurisdiction. The project drew on three sources of data:

1.7 First, we conducted 30 in-depth interviews with pursuers. There is only one previous study in the UK that involved pursuers, and this used a questionnaire to examine the motivations of claimants in England (Vincent et al. 1994). Other research that has directly involved claimants has been conducted in the US, and has also used questionnaires to examine motives (Hickson et al. 1992, May and Stengel 1990, Huycke and Huycke 1994). In contrast, our research used qualitative methods to examine pursuers' perceptions and experiences of the entire claiming process. For pursuers, an optimal system would provide for appropriate compensation, timely resolution of claims, and access to ongoing care, support and rehabilitation as needed. It is also important to understand why pursuers commence a claim, including their perceptions of what had gone wrong, experiences of the complaints process, motivations for making a claim, and satisfaction with outcomes, in order to appreciate that potential impact of a no-fault scheme. It is not possible to fully understand each of these aspects of claiming without directly speaking to pursuers themselves. The need to take a sensitive approach and to obtain in-depth data guided the decision to conduct interviews.

1.8 Second, interviews and focus groups were used to examine the views of 42 other stakeholders. These included pursuer solicitors, representatives from defender groups, patient support and advice groups, representatives of medical practitioner interests groups, and Independent Advice and Support Service (IASS) advisors. Participants from within the NHS included people directly involved in dealing with complaints, patient liaison, legal services and financial managers, as well as a spread of medical practitioners. These included practitioners from midwifery, general surgery, accident and emergency, obstetrics, and critical care.

1.9 Third, we conducted an analysis of data provided by the Central Legal Office (CLO) concerning claims closed since 1989. This data allows for a more generalised view of medical negligence claims than that provided by the more qualitative aspects of our research.

1.10 Following the Working Group's recommendations we then used the CLO data to estimate what the public expenditure implications would have been of the preferred NFS had it been in place in a typical year.

Key findings

1.10 While the focus of the research was on the intimation of a medical negligence claim as the end point of a process. The starting point of this the process for pursuers consisted of an adverse event taking place, or a patient perceiving that an adverse event has occurred. Most pursuers also had attempted to make a complaint prior to seeking legal advice and many of the findings reported here relate to events leading up to the claims process. It is likely that changes to any of the earlier stages of this process will change eventual claiming behaviour

Adverse events

• The rate of adverse events was seen by some pursuers to be related to the level of resourcing. For example it was felt that errors occurred if decisions were influenced by resourcing issues rather than medical needs.
• The reduction of adverse events requires tracking of errors and systematic learning
• NHS staff mostly appeared satisfied that a system of reporting was in place which ensured lessons were being learnt. However, staff identified a number of problems that persist and barriers to reporting of errors.
• There was little support from NHS-based stakeholders for the implementation of compulsory reporting in Scotland. They felt that that continuing cultural change would alleviate problems rather than stricter regulation.
• Whilst there appeared to be mechanisms for institutional learning from errors within individual clinical teams, there was less opportunity for institutional learning across Health Boards.

Patient grievances

• Experiencing an adverse event does not necessarily result in making a claim.
• Pursuers described an accumulation of problems which led to an overall sense of being disempowered.
• Pursuers' grievances included aspects of medical care, general care, not feeling fully informed, not including family members in the consent process and resourcing problems
• Communication breakdown was also identified by stakeholders as the main reasons behind patient dissatisfaction.

Complaints

• NHSScotland provides a single route for making a complaint against any NHS service. The complaints process is intended to provide an investigation, explanation, and where appropriate, an apology. It does not provide financial compensation.
• Most pursuers appeared knowledgeable about the complaints procedure, and most had used it. The main source of dissatisfaction related to feeling as if the explanation was not sufficient.
• The complaints procedures appears to have a heavy reliance on written material and communication, and NHS staff reported that the increasingly complex nature of complaints made achieving the 20 day limit on replying difficult. Nevertheless, NHS staff felt that most complaints are resolved at a local level.
• Many complaints concerned communication problems, which are not necessarily recorded in medical records, and the complaints system is not geared towards recognising these issues.
• The main problem with the complaints procedures appears to be patient's reluctance to use the process, largely due to fear of damaging the relationship with the healthcare provider. Patients may also be too ill or feel too vulnerable to make a complaint, and support from family and friends, and support and advice groups, was important in overcoming the power imbalance between patients and the NHS. It was apparent that patients need support to make a complaint, however advice was not always readily available or they were unaware of how to access advice.

Medical negligence claims

1.11 Problems with the current scheme included:

• Complaints and legal claims cannot be run at the same time in Scotland, which can potentially lead to considerable delay in resolving a claim;
• Previous research suggests that there is a problem of underclaiming in Scotland, where people with a potential medical negligence claim do not pursue their legal entitlements. Patients may not sue if they do not know an error has occurred, they are unable to access legal representation, or are afraid of retribution;
• The need to prove negligence is a significant barrier to obtaining compensation;
• Sources of funding for claims are limited, and there are also very few specialised solicitors;
• Pursuers' primary motivation was the desire for validation of their explanation of what had gone wrong. Pursuers rarely received this validation from either the complaints process or from pursuing a claim;
• Pursuers also wanted to protect other patients from a similar experience. Few wanted an apology. Most pursuers claimed that financial compensation was not a main motivation for suing, although medical professionals tended to believe that the desire for finanical compensation was pursuers' only motivation;
• Pursuers who did not win generally felt that these motivations were not fulfilled, and some pursuers who received compensation continued to be dissatisfied;
• The failure to implement case management reforms, including setting time limits by which parties needed to produce responses and progress claims, and ensuring the exchange of expert reports, was identified as hampering the progression of claims.

1.12 Our analysis of the data on closed cases provided by the Central Legal Office suggests that:

• Settlement is more likely to result when the pursuer is represented by a firm experienced in medical negligence claiming and the larger the financial 'value' of the claim
• Many 'small value' claims are not settled
• The costs of settled claims with an award below £20,000 now, on average, exceed the value of the award;
• There are also significant costs to the public purse of unsettled claims

1.13 Our views of the potential impact of a new scheme are that:

• A no-fault scheme will not automatically decrease medical errors, as this also requires errors to be reported and lessons learnt;
• Improving patient communication, empowering patients to make informed decisions and improving standards of care are important for decreasing claims;
• A no-fault scheme will need to be accompanied by an education campaign;
• A no-fault scheme would benefit from providing multiple routes of access. Potential pursuers will need to be informed of any new scheme, and advice and support groups will need to be tied into the process.
• A no-fault scheme will need to sit alongside the existing complaints procedure, which already aims to provide explanations and apologies;
• A new scheme would also require a screening and investigation process to identify claims where a clinical error has occurred, although pursuers would still want problems to be acknowledged, and possibly, to receive compensation;
• A scheme linking small financial payments to the complaints system might remove a significant number of small claims from the legal system and reduce the cost of settling them.

Conclusions

1.14 Suing a medical professional is the final step in a process that commences with the patient having a grievance. Grievances, complaints and even claims, were not necessarily related to a specific clinical event. Instead, patients' grievances were tied to problems of communication breakdown, staff attitude, perceptions of inadequate resourcing, and poor general care. Much of the discussion arising from the qualitative data has focussed on improving the complaints procedure in order to give complainants a greater sense that they were being listened to and that steps would be taken to ensure individuals and institutions learned from their complaint.

1.15 Our interviews with pursuers suggest that their major motivation is to gain recognition for their narrative around a medical 'error', and generally these narratives involved a number of complex and overlapping grievances. In their view, negligence had occurred, even if their claim was withdrawn. This suggests that much needs to be done to make clear the distinction between causation and liability. Interviews with other stakeholders suggest a view that a 'no-fault' system might open the 'floodgates'. Others with direct experience of claims suggest that the current delict system meant that pursuers' solicitors were able to mediate the process through shaping pursuers' expectations and screening out unmeritorious claims. There seems to be little if any support for capping any new scheme.

1.16 Our quantitative analysis has demonstrated that settlement of a claim is influenced by a range of factors including the level of experience of pursuer's solicitors in dealing with such claims and the financial value of the claim. Relatively small value claims appear less likely to result in settlement. We suggest that small claims might be better dealt with in a development of the complaints system which permitted a moderate level of financial payment in some claims. The data available to us suggests that there are considerable costs involved currently in settling small claims.

1.17 The Working Group has proposed the setting up of a 'No-Fault' Scheme for medical injury. In the Appendix to this Report we provide upper and lower estimates for the cost of such a scheme in a typical year over the recent past. We also provide a base-line estimate of the current negligence scheme's costs for a typical year of £18,057,455. Based on a range of plausible assumptions we estimate an upper estimate of £27,014,275 and a lower estimate is £18,357,455. The proportionate increase in public expenditure represented by our upper estimate is considerably lower than that previously estimated for the introduction of a no-fault scheme in England (Fenn et al 2004).

1.18 It is important to note that estimates produced are not predictions of what a no-fault scheme will cost in the future but are estimates of what public expenditure would have been in a typical year over the recent past for cases handled by the Central Legal Office had the proposed no-fault scheme been in existence.

1.19 The Review Group's Recommendation 5 is that "any compensation awarded should be based on need rather than on a tariff based system". We understand that under the current system a large proportion of legal claims are settled out of court. No allowances are built into the estimated figures to reflect this as it has been assumed that payments under a no-fault scheme based on the Group's recommendation would be of the same magnitude as successful claims under the current litigation system.