A flawed case for reform of the clinical negligence process

Authored by ARAG

Last week, Jeremy Hunt attended AvMA’s Specialist Clinical Negligence Panel meeting, in London.

His appearance at the meeting followed a recent Law Society Gazette article reporting comments Hunt made at a webinar, which suggested that the nature of clinical negligence litigation in the UK is partly responsible for the failure of doctors and hospitals to learn from medical mistakes.

The comments are particularly disheartening in the light of ARAG’s own clinical negligence roundtable, broadcast about a month ago, which publicly confirmed what many of us in the sector already knew. The pandemic has served to bring the parties in clinical negligence cases even closer together and to work much more collaboratively.

Mr Hunt, who chairs the House of Commons Health and Social Care Select Committee, suggested that the duration of legal processes to recover compensation for injuries caused by an error in clinical practice was delaying the learning that needed to be drawn from such incidents.

This is, of course, an entirely false premise on which Mr Hunt seems to be building a case for reform of the clinical negligence process.

There is nothing to stop hospitals from investigating incidents in which patients have been harmed immediately. One would hope that is exactly what they do, in every case. And if clear opportunities for learning or room for improvements in care are identified, then presumably they will be implemented as quickly as possible.

The suggestion seems to be that fear of prejudicing the defendant’s case is impeding prompt and proper investigation of medical accidents. If an investigation were to uncover malpractice or wrongdoing, this would have to be disclosed, potentially undermining the defence.

The idea seems contrary to any logic. If a defendant is liable for the harm done to a patient, the hospital or trust would want to know as quickly as possible, not simply to avoid the additional costs it might face in defending a case that is destined to be lost, but also the risk of further litigation and, potentially, other sanctions for continuing to make the same mistakes.

Hopefully, the sense of greater cooperation discussed in ARAG’s webinar will continue to prevail. As one of the guests, Stephen Grime QC, pointed out, the less adversarial, more collaborative approach to clinical negligence claims is something that was developing long before the pandemic.

Like many aspects of life, Covid-19 has accelerated a trend that was already well underway. The pandemic’s wider impact on clinical negligence claims has been enormous and will not be fully assessable for years, but it will be addressed in a less adversarial environment than ever before.

The fundamental question of any reform, however, remains the same. Do we want to trim away at the peripheral costs of claims against healthcare providers that have injured people through negligence or cut them altogether by reducing the number of claims that need to be made.

Louise Tyler is a partner and head of medical negligence at Wilson Browne Solicitors. She is a member of the Law Society Clinical Negligence Panel, the AvMA (Action against Medical Accidents) Panel and serves on the Executive Committee of the Society of Clinical Injury Lawyers (SCIL)