'The value of compensation', a report by the UK Association of Personal Injury Lawyers (APIL) as part of the House of Commons Health and Social Care Select Committee inquiry on NHS litigation reform, comments
The essential purpose of compensation is to, as far as possible, enable the person who has suffered from negligent medical treatment to get back to a ‘normal life’, i.e. the position they were in prior to the negligence occurring. The impacts of negligence are wide-ranging and include job loss, poor physical health, financial troubles, relationship breakdowns and a loss of self-identity and self-worth. Patients who have suffered negligent medical treatment may be able to take legal action against the NHS and claim compensation if it can be shown that the negligence has directly resulted in injury. Patients can take legal action on behalf of themselves or on behalf of their next of kin if that person doesn’t have capacity to pursue action themselves or has died as a result of the negligence.
Compensation is split into three parts – general damages, that is compensation for pain, suffering and the detrimental effect on quality of life; special damages for past losses, that is compensation for upfront expenses related to the injury; and special damages for future loss, that is compensation for the loss of earnings in the future, or the loss of earning potential, and future care.
Examples of clinical negligence include the healthcare provider:
- Failing to diagnose a condition or making the wrong diagnosis
- Negligence during a procedure or operation
- Administering the wrong drug
- Failing to get informed consent for treatment
- Failing to warn about the risks of a particular treatment
NHS organisations pay an annual premium to the Clinical Negligence Scheme for Trusts (CNST), an insurance scheme administered by NHS Resolution, to mitigate against the cost of clinical negligence claims. Typically, NHS Resolution represents the NHS when a patient takes legal action against the NHS and claims compensation. There are also other, more minor schemes which NHS organisations pay into to mitigate the cost of clinical negligence claims.
At present Judicial College Guidelines for the Assessment of General Damages in Personal Injury Cases are used to determine the financial value of general damages. These guidelines place an upper limit on the amount of compensation that can be awarded for each type of claim. Every penny of special damages must be accounted for in a schedule of loss.
The report comments
1. The consequences of NHS negligence are wide-ranging
NHS negligence causes significant disruption to patients’ lives and to the lives of their family and friends. Peoples’ physical, emotional and financial health can be seriously affected by the injury caused through negligent care. With the help of compensation, some can recover from, or adapt to, the consequences of NHS negligence relatively quickly. However, compensation doesn’t always stretch to help with the longer- term effects of negligence, which many suffer from for the rest of their lives. When rapid recovery isn’t possible, people can fall into a spiral of decline. Financially, they face mounting debt; psychologically the pain and suffering can result in poor mental health, including depression. In the cases with the most serious consequences, the negligent act can become embedded in the patient’s sense of self-identity and self-worth. It’s not possible for people to return to the life they previously enjoyed when they have lost relatives unexpectedly or when the negligence has caused acute impairment. In these circumstances some find it difficult to see themselves as ‘more than’ the victim of the negligence. The fight for justice can become an all-consuming process.
2. The injury caused by NHS negligence has both direct and indirect costs
Direct costs are commonly associated with: • A reduction in household income • Increased expenditure due to the need to travel to appointments • Unexpected costs associated with increased living expenses • Direct costs of home adaptations or mobility aids Again, rapid recovery is key for mitigating against indirect costs associated with long-term unemployment and relationship breakdown. If patients are unable quickly to cope with financial pressures, it can take a long time for their standard of living to return to ‘normal’. Some may never have access to the same financial opportunities they had before the negligent event. This in turn has a negative effect on their quality of life.
3. Compensation helps people to rebuild their lives
The role of compensation is multifaceted and serves to help people who have suffered injury because of negligent care get their lives back on track. Financially, it helps people to recoup expenses or loss associated with direct costs, and in doing so alleviates financial pressure. Functionally, it provides access to the private treatment or alternative therapies needed to aid physical recovery and mitigate against long term damage. When physical recovery is not possible, compensation helps people adapt to their impairment and provides access to home adaptations and mobility aids. In doing so it helps people regain independence and freedom.
4. Private treatment is often a key factor in recovery
Private treatment aids recovery, both physically and mentally. It includes treatments such as physiotherapy and acupuncture, which contribute to better mobility and dexterity, and corrective surgery, which helps in the rehabilitation process and in improving the patient’s condition. Having access to quality treatment quickly provides reassurance to those who feel like their life has been put on pause.
5. Compensation can be an effective acknowledgement of what can’t be replaced
On an emotional level, compensation can be perceived by the patient and/or their next of kin to be recognition of the injustice experienced. Families experience avoidable pain, suffering and loss as a result of negligence and it is important to acknowledge, and be empathetic towards, the real-life consequences felt by individuals. In a top-down institution, some patients feel there is a tendency to lose sight of the people affected by negligence. When a life has been lost, compensation can go some way towards honouring that person’s contribution and acknowledging the opportunities missed. For families to feel any sense of justice for the deceased, it is important that the NHS is held accountable and recognises the loss of life.
6. Where negligence has caused uncertainty about the future, compensation offers reassurance
Especially in cases where children are involved (either directly or indirectly), the negligence causes particular anxiety around potential long-term implications for the patient and their family, especially in relation to on-going health problems and financial stability. Compensation has a key role in providing a sense of security. Knowing that there are funds to fall back on for further treatment or to facilitate financial stability offers reassurance to patients living with unknown consequences. It is important for people to feel that they can protect their family against future disadvantage caused by the negligent act. From an emotional perspective, this is important as it allows people to feel they can move forward.
7. The compensation awarded is ‘not life changing’, it simply helps people get back on track
Patients place huge value on compensation because it helps them get back on track and recover from the negative fall-out that was caused by the negligence. Compensation does not provide the means for people to elevate their standard of living. It simply facilitates a ‘return to normal’, or an adaption to a ‘new normal’, post the negligent event.
8. Compensation isn’t about shaming the NHS, but about recognition of wrongdoing
Many patients mention their admiration and respect for the NHS and the work that they do, and some mention not feeling particularly happy at having to take action against them. However, it is considered important that negligence and wrongdoing are recognised and equally that these experiences are not repeated for others.
