Clinical Negligence Legal Costs Must Be Contained Warns DDU
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- Published: Thursday, 15 August 2024 16:59
- Written by Guy Tuggle
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As clinicians know to their cost, the threat of a clinical negligence accusation is an ‘occupational hazard‘ across all medical sectors and dentistry is no exception.
The public know that ’where there’s blame, there’s a claim’ with the Whitehall spending watchdog warning that the NHS now has a £4.4BN pipeline of them. Emergency medicine, orthopaedic surgery and obstetrics lead the field, followed by general surgery and gynaecology.
Dental negligence claims are not covered by the funds annually put aside by NHS trusts ( in 2019/20 the money set aside by trusts was estimated to be £1.9BN). Instead, indemnity policies, paid for by dentists and hygienists provide dental clinicians with cover that includes advice, case management and settlement where deemed the best course of action .
Costs, however, are rising, and the Dental Defence Union (DDU) is urging the government to consult on proposals to address the cost of clinical negligence.
The call was made following the publication of DDU parent company, the MDU’s annual report and accounts, in which the organisation said the current situation was ‘unsustainable.’
The indemnity provider is especially concerned about the ’legal costs’ element of claims which often exceed the value of compensation paid to patients, notably in lower value cases.
The DDU reported that during 2023, it closed 59% of dental claims without a payment of damages. Where dental and medical cases proceeded to trial and concluded in 2023, the report shows that 71% were successfully defended.
Despite the organisation’s successful defence rates, concerns continue about the total cost that clinical negligence litigation poses to healthcare in the UK – coupled with the wider dento-legal environment.
In 2023, average claimant legal costs in DDU cases were in excess of £10,000 for claims settled up to £5,000 and in excess of £15,000 for claims settled between £5,000 and £10,000. For claims settled between £10,000 and £25,000, average claimant costs were in excess of £25,000.
Commenting on the situation, Dr Matthew Lee, Chief Executive of the MDU said “When a clinical negligence claim arises, it can be one of the most stressful episodes of a healthcare professional’s career. The DDU supports members every step of the way, and our success rates in defending claims demonstrates this.
“However, behind these successes – we can see that the entire clinical negligence system is crying out for reform. Nowhere is that more evident than in the disproportionate legal costs awarded in lower value clinical negligence claims. We regularly see legal costs eclipse the amount of compensation awarded to a patient.
“I have written to the Secretary of State for Health and Social Care, urging him to take action. Every pound the NHS pays out in a settlement for clinical negligence is a pound less that cannot be spent on innovation and improving patient care for all."
DDU parent the MDU, has long been pushing for reform via its Fair Compensation campaign.
Dr Lee says "The prompt introduction of fixed recoverable costs in clinical negligence claims up to £25,000 would be a start, shortly followed by a commitment to extend that regime to claims valued up to £250,000".
But critical to any reform must be a change to the law which currently uses private charges to calculate and thereby inflate many NHS settlements. "We also must see the repeal of S2(4) of the Law Reform (Personal Injuries) Act 1948, requiring the courts to disregard the existence of the NHS when making a compensation award, and instead doing so on the basis of the cost of private care” said Dr Lee.
Compensation claims paid out in the UK are amongst the highest in the world.
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