Huge monetary costs of NHS negligence

Despite the fact that most Brits are effectively discouraged from claiming and despite the fact that awards in Britain are usually only a tiny fraction of the equivalent in the USA

For Dr Spencer at his Norfolk surgery, the whoops-a-daisy moment came when he dosed a woman with bismuth. Startled by her dyspeptic response, and eager to reassure her increasingly agitated husband, he swallowed a spoonful of the stuff himself. "See? Perfectly safe!" Two things then happened: Dr Spencer vomited, fell down and lay writhing on the floor. His patient died.

The explanation was simple. As the doctor explained to the coroner, bismuth and strychnine look remarkably similar in the bottle and, well, mistakes do happen. At the subsequent trial for manslaughter, Mr Justice Willes agreed. A simple blunder, he said, was not in itself a criminal act. To secure a conviction, the crown would have to prove that the doctor's medicines were in such chaotic disorder that it was impossible for him to know which was which. Not guilty, said the jury.

That was in 1867. Legal actions against clinical killers then were exceedingly rare, and would remain so. By 1989 only six more doctors had been fingered for manslaughter - an average of one every 20 years. Then something changed. In the 1990s, 17 were prosecuted, and since 2000 there have been 11 more. One or two of them, like the Spencer case, were tales of startling improbability. A woman under anaesthetic was connected to an oxygen cylinder instead of to a ventilator and inflated like a balloon (the anaesthetist got six months' jail, suspended for 18 months). Mostly, however, they were mundane tragedies of misread notes, wrong drugs or lethal doses administered by exhausted, inexperienced or occasionally negligent practitioners who failed in the most basic of their responsibilities.

This relatively small number of headline cases, however, was only the tiny tip of a legal iceberg. It wasn't just the police and Crown Prosecution Service who were taking a more critical look at wards and clinics - it was the patients themselves. In England between 1990 and 1998, the rate of civil negligence claims against hospitals doubled, reaching a peak in 1998-9 of 6,168. If we didn't know them to be true, the numbers would strain credibility. The cost to the NHS of claims settled in 2006-7 was 579.3m pounds. In the same year it was hit by 5,426 new cases. The NHS Litigation Authority (NHSLA) estimates that the combined cost of settling all outstanding claims, including incidents so far unreported, will be 9.09 billion pounds.

Some of the settlements are whoppers - the actress Leslie Ash made headlines in January this year when she was awarded 5m pounds for the paralysing effects of the hospital "superbug" MRSA. The all-time record is the 12.4m paid last year to a professional dancer, Kerstin Parkin, who suffered brain damage from a heart attack during childbirth. Others by comparison are trifling - "a few hundred pounds for someone scratched during an operation" is one example offered by the NHSLA. But there is an important common factor, and it affects us all.

Paralysing tentacles of fear are now putting the squeeze on medical practice, and changing the way we are treated. Type the words "clinical negligence" or "no win, no fee" into Google and you'll see why - a clamorous pack of legal agencies and law firms who trade on the idea that every accident must be someone's fault. Some websites even provide interactive body maps showing the value of everything from an injured finger (1,000 to 75,000 pounds) to serious brain damage (millions). The come-on to patients is the promise of "no win, no fee". If the lawyer wins your case for you, he collects his fee in costs from the other side and you walk away with your damages in full. If he loses, he charges nothing. So, come on! What are you waiting for? Sue the doc!

Many cases in the past have been the medical equivalents of the time-honoured "slips and trips" actions against local authorities with bumpy pavements. Anyone coming out of hospital with a bruise or a sore eye they didn't go in with was encouraged to call a solicitor. The result was that lawyers' fees were often higher than the damages they won, and these in turn could be eroded by extra costs - medical reports by independent experts, for example - so that even successful litigants wound up out of pocket. According to the National Audit Office, legal and administrative costs exceed money paid to victims in most claims under 45,000. This is why Citizens Advice in 2004 published a 59-page report on personal-injury compensation under the title No Win, No Fee, No Chance.

As so often with the NHS, vice is the bastard child of virtue. "No win, no fee" deals, known in law as conditional-fee arrangements, were introduced by an amendment to the Courts and Legal Services Act in 1995. It was meant to be a double benefit. The courts would be opened up to those in the income trap who were ineligible for legal aid but unable to afford lawyers. The government itself would save money by effectively privatising legal aid. On the surface it looked like the long-overdue democratisation of civil justice.

But law firms are not charities. Working for nothing - pro bono - is not unknown, but it hardly stands as an ideal business model. If lawyers were to drop their fees when they lost, then they would need a bonus when they won. Recognising this, the law allows a "success fee" of up to double the normal scale. In clinical- negligence cases, when judgment favours the patient, this must be paid by the NHS, otherwise known as the taxpayer.

Given all this, the one surprise is that the number of cases each year is actually going down, albeit very slowly. The cost to the NHS nevertheless continues to rise. How can this be? Ironically, it is due in part to improvements in medicine that allow seriously damaged people - especially children - to survive for near-normal life spans. For this reason, courts are awarding much higher damages. Thirty years ago, for example, children suffering cerebral palsy in birth accidents might be expected to die. Now they can reach late middle age. Damages in such cases, which account for 60% of all claims the NHSLA faces, can run to 5m or more....

Walsh does not buy into the idea that avaricious lawyers alone are to blame for the escalating costs of clinical negligence, or even that the costs are excessive. "They come to well under 1% of the NHS budget," he says, "so the notion that claims are bleeding the NHS dry doesn't hold water." Furthermore, it's entirely reasonable for claimants' solicitors to charge more than their opponents do.

Apil's Amanda Stevens agrees. "It's much more costly to prepare evidence to prove a claim than it is to assemble evidence to knock it down," she says. The British public, too, is very far from the writ-happy mob of gold-diggers that the headlines often suggest. "They do not like making a claim." Every year, she says, around 800,000 "adverse clinical events" are recorded in the NHS, and many more - at least 20% - go unreported. Yet only 1% of the victims make a claim, and only 10% of these - ie, 0.1% of the total - get damages.

Thus if the NHSLA believes it is shelling out too much in costs, the remedy is in its own hands. It is a legal catch-22. The NHSLA is duty-bound to keep expense to a minimum, and therefore to challenge costs awarded against it. This means that more cases go to appeal and legal costs escalate. Peter Walsh invites the NHSLA to draw the obvious conclusion. "Stop arguing, admit fault and settle earlier without drawn-out legal wrangling," he says. "That alone would save millions of pounds."

Of all the ways to cut the costs of medical negligence, one stands out way above the others: avoid being negligent in the first place. The NHS needs literally to clean up its act. Here are some figures reported by Sir Liam Donaldson in 2003: 10% of hospital admissions may result in something going wrong; 5% of the entire population report "some adverse effects" of medical care; 18% of patients say they have been victims of "medication error" within the past two years. On top of all the traditional foul-ups - missed diagnoses, poor or inadequate treatment, slipped scalpels and lethal drug doses - now looms the utterly modern phenomenon of the drug-resistant hospital infection. As recently as February, the Department of Health thought it necessary to launch a national campaign against the over-prescription of antibiotics. "The more we take antibiotics when they are not necessary," said Donaldson, "the more bacteria will become resistant to them." Yet patients with runny noses still think they can be cured by them, and - for all that they know better - some doctors still go on doling them out.

The other thing that bacteria love is filth, and the ideal place to look for it is in an NHS hospital. The result is that there are now law firms claiming to specialise in hospital "superbug" cases, and the number of claims is multiplying like bacteria on a Petri dish. One of the most notorious cases involved the three hospitals administered by the Maidstone and Tunbridge Wells NHS Trust where, between April 2004 and September 2006, more than 1,170 patients were infected with Clostridium difficile. According to the Healthcare Commission's official report, about 90 people "definitely or probably died as a result of the infection". The commission's inspectors found that the hospitals were epidemics waiting to happen. Supposedly clean bedpans were contaminated with excrement. Nurses were not washing their hands, emptying commodes, cleaning mattresses and equipment, or wearing aprons and gloves. If there was a parlour game called "pass the bacteria", this is how you'd play it. The health secretary, Alan Johnson, described the episode as "scandalous", and Kent police are still weighing the possibility of prosecution.

Another NHS trust in trouble was Bromley, against which the commission issued an "improvement notice" in February. Inspectors found an absence of routine cleaning around beds in the wards; sterilising equipment not being properly used; dirty commodes marked clean and ready for use; a blood-culture bottle trolley thickly covered in dust, and more. One is always wary of generalising from the particular, but there is no reason to suppose that these two trusts are wholly out of the ordinary. In fact, there is every reason to think otherwise. In June the Healthcare Commission reported that 103 of the 391 primary-care and hospital trusts in England were not meeting statutory hygiene standards - a failure rate of over 25%. The nurses might not be washing their hands, but the lawyers sure as hell are rubbing theirs.

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