Thursday, February 7th, 2019 posted in Litigation, Opinion, Paul Sankey

Why Do People Bring Clinical Negligence Claims?

~ by Paul Sankey, Enable Law

Contrary to popular belief, the number of people who bring clinical negligence claims is relatively small. Whilst no figures are available for the number of medical mistakes each year they are thought to be very high. An estimate in 2000 put the figure at 850,000. If that was anywhere near true it will be higher now, if only because there is more treatment. However according to statistics from NHS Resolution (which handles claims for NHS trusts) only 17,338 claims were brought against NHS trusts last year. It seems that very few people injured by medical accidents bring claims. People often ask why the number of claims – and the amount spent on them – is so high. The real question is why they are so low.

As a solicitor acting for claimants, people often tell me they are not interested in the money. I am never sure how true that is. And I have to advise that the only remedy the court can offer is money. But it may be true in many cases. There is research suggesting that only for 20% of claimants is money the priority.

So it seems that few people who could bring a claim choose to do so and many of those who do are not motivated by money. So why do they do it? This is an important question. Knowing the answer may suggest ways of addressing issues of importance of people which may only obliquely be addressed through litigation.

Behavioural Insights

NHS Resolution recently commissioned research on the motivation of clinical negligence claimants from the Behavioural Insights Team. The results are enlightening. Many of us who work in this area interesting intuitively recognise these conclusions as true.

The research confirms that not many people who could bring claims choose to do so. It estimates the figure as one in ten. (That strikes me as high if NHS Resolution only received 17388 claims last year but it is still a small percentage.)

The report considers 3 types of factors which need to be present if people are to claim.

  1. Capability

People must be able to bring a claim. Even with a lawyer, they need the skills. Making a claim normally requires enough literacy to instruct solicitors, formulate a case, manage correspondence, approve documents. Families and friends may help, as may having previous experience of bringing a claim (but not many people have the misfortune to bring more than one claim). Incidentally the loss of legal aid has made it harder for many people to access justice (an entirely foreseeable consequence) as well as ironically driving up the cost of claims (an unintended consequence).

  1. Opportunity

People are more likely to bring a claim if they are prompted in some way. The researchers found that 30% of interviewees had been encouraged to consider a claim by medical staff. Advertising can act as a prompt, alerting people to their ability to bring a ‘no win no fee’ claim (and taking away the risk for them). Some people are prompted by speaking to family or friends.

  1. Motivation

Perhaps the most interesting factor is motivation: what is it that makes eligible people (ie those who are capable and have the opportunity) want to bring a claim? One of the reasons it is interesting is that uncovering people’s motivation may be the key to finding ways other than litigation to resolve their concerns.

A key factor according to the research was frustration with how complaints had been handed. Virtually all claimants – 93% – cited this. Interviewees were inclined to use quite strong language, speaking of ‘anger’, being ‘livid’ and ‘furious’. So one factor driving claims is how complaints are handled. This is a factor within the control of NHS trusts if they want to reduce claims. Staff may feel wary of admitting mistakes to patients in case they end of involved in litigation. Ironically it may be that failing to make those admissions and apologise to patients generates claims.

Frustration and anger were not the only were not the only factors identified by the research. Many reported the following wishes:

  • To prevent the same happening to others
  • An apology
  • A detailed investigation and explanation
  • To hold clinicians to account

A number of patients considered financial compensation important in order to make good their loss. Some examples of things people said which were quoted in the report were:

‘I was just very depressed because I had lost a huge amount of money’.

‘It wasn’t to sue them and line my pockets, it was just to try and get the money so that I could afford [corrective surgery]’.

‘I thought, right, I need to try and do something here because I need some money to be able to manage for what is going to the rest of my life’.

I had suggested that only 20% of people bringing claims considered money the priority. It seems from these quotes that it was important not because they wanted to benefit from a windfall (the picture the media sometimes presents of litigants) because they wanted reimbursement of financial loss. This is of course the goal of our civil justice system. The courts award ‘damages’ and not ‘compensation’ (the one exception being an award for pain, suffering and loss of amenity, which comprises a small part of most clinical negligence claims). The aim of damages is to put people in the position they would have been in but for the negligence.

The conclusions of this research are not surprising. For some time I have given presentations to doctors on how to avoid claims, from my perspective as a claimant lawyer. What I have always said is that people who have suffered loss from negligence bring claims not for that reason alone but because:

  • they feel as if their doctor didn’t listen to them;
  • communication had broken down;
  • they feel a lack of trust;
  • they had expectations which were not met (perhaps because those expectations were not well managed in the first place); or
  • they did not feel their complaint was treated openly and honestly when things went wrong.

Complaints Handling: Room for Improvement

One very practical implication of the report is that the NHS needs to handle complaints better, with openness and honesty. Doing so not only fulfils what is a duty to patients – to treat them with candour – but will probably reduce the cost to the NHS of claims. Of course we still need to improve patient safety and reduce the number of medical errors. But whilst waiting for the day of greater patient safety improving complaints handling should be a goal that is well within our means.