This week I met a man about to launch a legal action for negligence against the hospital where his wife and son almost died during childbirth. Two years later, she is still recovering and waiting for answers as to what went wrong. Exhausted by months of obstruction and denial, they believe going to court is the only way they will get an admission that mistakes were made. They don’t want money, just an apology and assurance that no one else will have to suffer as they did.
This entirely avoidable melodrama is being played out across the NHS. Friday’s report by the public accounts committee into the cost of clinical negligence in hospital trusts reveals that the bill has quadrupled in 10 years to £1.6bn and is expected to double again by 2021.
That would mean more than £3bn wasted on negligence costs in a single year, amounting to roughly 4% of trusts’ income.
The rising costs are driven by two factors. As well as increasing damages for a small and stable number of “high value”, mostly maternity-related claims – which account for 83% of the damages awarded – there is a growth in the number and cost of “low value” claims. Fewer than 4% of people who experience harm make a claim, says the public accounts committee.
The money is, of course, just a small part of the final bill, which is mainly paid in anguish for patients, families and staff, and in many cases life-changing harm.
This human and financial toll raises two questions – why are errors happening, and why are so many people driven to take legal action to find out what went wrong?
The root cause of errors can be seen in every hospital. Clinicians overwhelmed by steeply rising demand and chronic staff shortages are now routinely pushed beyond the boundaries of safe practice. Junior doctors are being forced to jeopardise patient care and their own careers by being left to manage departments alone.
Among endless examples of deteriorating patient safety, the Care Quality Commission has just launched a national review of radiology services after discovering that cancer patients were seriously harmed when more than 20,000 x-rays in one hospital were checked by staff operating beyond their competence.
Among all the difficulties there are some promising developments on patient safety. The government has just announced that the Healthcare Safety Investigation Branch will investigate every case of stillbirth, neonatal death, suspected brain injury or maternal death, while the public accounts committee highlights early evidence that the Get It Right First Time programme is improving the quality of orthopaedic surgery.
But there is little to celebrate if, as these initiatives are being brought in, risk is escalating in other parts of the system.
The much publicised “duty of candour” should help eliminate such serious failings. There has been some progress in encouraging a more transparent culture in the NHS, but the cold truth is that anyone who speaks out publicly about compromised safety is still jeopardising their career.
That continuing lack of openness is what drives so many people to court to get answers (we don’t know exactly how many people sue for this reason because the data is not collected). Legalistic, insensitive and sometimes deceptive and dishonest responses to patients and families about what went wrong adds immeasurably to the stress of experiencing harm and haemorrhages public trust in the health service.
Whatever the fine words in the duty of candour or the NHS Constitution, staff still feel afraid to admit the truth either to the leaders of their own organisation or to those who have suffered.
The vertiginous growth in clinical negligence costs is a warning that NHS staff are being driven to normalise risk-taking in an ever more frantic attempt to get the job done, and too few staff feel they can speak out safely.
- Richard Vize is a public policy commentator and analyst
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