6.5 Clinical negligence: the future
Clinical negligence claims are big business. The numbers of claims brought has
increased very rapidly over the last few years. The loss of legal aid for clinical
negligence claims might stop the trend. Such claims are now increasingly funded
by `no win, no fee' type arrangements, and obviously such arrangements
concentrate the mind of the claimant's lawyers harder on the merits than an
unlimited legal aid certificate previously did.
Comparisons are often drawn between the rise in clinical negligence cases in
England and the situation in the litigation-mad USA. The comparison is not a good
one. In the US Ajuries generally assess damages, and are much less scientific,
much more generous, and much less strictly compensatory about it than are the
professional judges who assess damages in England. If irrationally large awards of
damages are not going to become available, irrationally large numbers of clinical
negligence actions are unlikely. In England, too, contingency fee arrangements for
legal funding whereby the lawyers get a percentage of the damages recovered ± a
clear incentive to push the damages as high as possible) are illegal. They should
remain so. They are an invitation to sharp practice.
It is sometimes said that a lot of litigation is launched by litigants wanting an
apology and an explanation rather than damages. This is true. Increasingly, pro-
cedures for investigation and, if appropriate, compensation) which bypass the
courts are available. These include informal mediation. Few clinical negligence
cases have yet been arbitrated or mediated, but there seems no reason why these
methods should not work in some cases.
It may seem unfair that a claimant's entitlement to damages should depend on
him proving fault. The claimant's need for compensation is just as great whether or
not fault can be proved. This consideration has led some to advocate no-fault
liability schemes for clinical negligence. The basic problem is cost, and it seems
highly unlikely that any British government in the foreseeable future will be pre-
pared to finance such an initiative. In the case of National Health patients injured
by National Health negligence, it is arguable that there is a de facto no-fault liability
scheme in place anyway in relation to many of the costs which are claimed in
clinical negligence actions. This is because much of the medical treatment and
nursing care and many of the appliances which NHS negligence makes necessary
are themselves provided by the NHS.
For the moment, then, it seems likely that the liability of NHS bodies and of
individual practitioners will remain governed by the principles set out above.
6.6 Notes and references
- SeeRv.Adamako[1994] 5 Med LR 277.
- For actions in relation to the birth of an unwanted child now, seeMacfarlanev.Tayside
Health Board HL) [2000] 1 Lloyds Rep. Med. 1. - SeeMacfarlanev.Tayside Health Board 2HL)[2000] 1 Lloyd's Rep. Med. 1.
- Arising from Mr Justice MacNair's direction to the jury inBolamv.Friern Hospital
Management Committee[1957] 1 WLR 582.
Negligence 87