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Government must act on rising clinical negligence costs

Urgent action needed to reduce cost and stress burdens of unjustified litigation on GPs and the NHS

Louise Prime

Wednesday, 18 October 2017

The Public Accounts Committee must hold the government to account over the escalation in clinical negligence costs, the Medical and Dental Defence Union of Scotland (MDDUS) has insisted. It said the government must acknowledge the need for tort reform and set out a comprehensive plan for its implementation in order to address rising clinical negligence costs – and it urged the Lord Chancellor to act to rectify the “damaging impact on the NHS and GPs of the demonstrably flawed decision in February 2017” when the Discount Rate changed from 2.5% to minus 0.75%.

The National Audit Office (NAO) reported last month that the cost of claims handled by NHS Resolution’s Clinical Negligence Scheme for Trusts (CNST) is increasing faster than year-on-year increases in NHS funding, and concluded that “many of the external drivers required to reduce the cost of the CNST are outside the control of NHS Resolution”. MDDUS pointed out this echoed the Department of Health’s findings in its July 2016 indemnity review that, in the GP context, “the increases in the cost of indemnity are due to factors largely out of the control of the medical defence organisations”.

Following Monday’s examination by the Public Accounts Committee of the NAO report, MDDUS is urging the Committee to hold the Government to account in addressing the many cost drivers, prior to publication of its report later this year. In its written submissions to the Committee, MDDUS set out the key measures it considers capable of having the biggest impact on the cost of clinical negligence litigation:

· reversal of the discount rate decision

· introduction of fixed recoverable costs

· urgent legislation to repeal of Section 2(4) of the Law Reform (Personal Injuries) Act 1948, which provides that, in the context of personal injury claims, the availability of NHS care is disregarded when quantifying the cost of any medical treatment required in consequence of the injuries sustained.

MDDUS senior lawyer and practice development manager, Joanna Jervis, argued: “Awards continue to be calculated on the basis of the costs of private sector care, when all the evidence shows that those who receive damages, quite rightly, use excellent and readily accessible NHS services where they can do so.”

She said the MDDUS is ‘disappointed’ that the committee did not press the Permanent Secretary for Health on the reasons for the delayed response to the fixed recoverable costs consultation that was expected in July, and she insisted: “If the Government is really serious about reducing the cost and stress burdens of unjustified litigation on the NHS and GPs, then it needs a joined-up approach on tort reform and to deliver promptly on the promised proposals to change the way in which the discount rate is calculated.

She went on: “The Department of Health needs to do more than simply rubberstamp Lord Jackson’s recommendations which take on a narrow perspective and fails to engage with the wider impact of unjustified litigation on the NHS and GPs. …

“It is imperative that a new rate is set that is fair to claimants and defendants alike and gives the market greater certainty. The damaging impact on the NHS and GPs of the demonstrably flawed decision in February 2017 is continuing and the Lord Chancellor has the power (indeed, the duty) to rectify this situation now.”

Ms Jervis concluded: “A failure to take immediate action on these matters has a continuing impact on costs in the context of CNST claims and those against self-indemnified GPs.”

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