CHAPTER 1: INTRODUCTION
The current system of medical negligence compensation in Scotland
2.1 Scotland currently operates a fault-based compensation scheme for medical negligence claims, meaning that compensation is predicated on showing that the health provider was negligent. Compensation can either be awarded by the court, or be paid to the pursuer in the form of an out of court settlement following a claim against an NHS Board.
2.2 The current system covers medical negligence claims made directly against employed Health Board staff, which includes medical, dental and nursing staff. It also covers all aspects of hospital care, as well as front-line and support activities. Pursuers can seek compensation in relation to injuries or loss, including delays in treatment, future care loss, and loss of earnings. Health Boards fund all settlements, but are protected against disproportionate loss by the Clinical Negligence and Other Risks Indemnity Scheme (CNORIS). It does not cover claims made against GPs and other primary care contractors, such as dentists, optometrists or pharmacists, and claims made against these providers are separately insured.
2.3 CNORIS was implemented on the 1st April, 2000 and membership is mandatory for all health boards. The two principle aims of the scheme are: first, to provide financial efficiency through cost-effective risk pool and claims management; second, effective risk management strategies. Willis Ltd has been contracted to design, implement and manage the CNORIS scheme. Crown indemnity was introduced in Scotland in 1989. Thereafter the liability for medical negligence claims has been handled on behalf of the Health Boards, by the Central Legal Office (CLO).
2.4 The Scottish scheme is distinct from the current schemes operating in England and Wales. In England, medical negligence claims against the NHS are the responsibility of the NHS Litigation Authority (NHSLA). The NHLSA was established in 1995, and the liability for medical negligence claims (which have occurred on or after 1st April, 1995) are covered by the Clinical Negligence Scheme for Trusts (CNST). In Wales, the Welsh Risk Pool (WRP) is a mutual self-insurance scheme designed to cover member NHS bodies in Wales. WRP membership is voluntary, although every Trust and Local Health Board in Wales is currently a member. Members paid a premium into a pool, with premiums based upon the size and claims history of the organisation.
2.5 All of the current British schemes are fault-based, although in England the NHS Redress Act (2006) has set out a framework for establishing the NHS Redress Scheme, although the Act is yet to be fully implemented. The Scheme is intended to provide a swift resolution of low monetary value claims (£20,000 limit) without the need to go to court. NHS bodies in England would determine liability of claims and make payments.
2.6 To date, there has been no comprehensive review of ways in which the different British schemes operate. The Scottish scheme has some distinct features, which are likely to make its operation significantly different than the other British jurisdictions. There are fewer claims in Scotland compared to England, Scotland has fewer specialised pursuer solicitors, and there are important procedural differences between Scotland and the other British jurisdictions. The implications of these differences are examined throughout the report.
The argument for reform
2.7 The No-Fault Compensation Review Working Group was established on the 1st June 2009 in order to consider the potential benefits of a 'no-fault' scheme in Scotland, and whether such a scheme could be introduced alongside the existing clinical arrangements. No-fault schemes are seen as the main alternatives to fault-based schemes, and no-fault schemes do not require the pursuer to prove negligence.
2.8 An optimal system for resolving medical negligence claims must deal efficiently with claims and minimise costs. For pursuers, an optimal system provides for appropriate compensation, timely resolution of claims, and access to ongoing care, support and rehabilitation as needed. For scheme providers and their members, costs of claims need to be contained, and while savings can be made by minimising costs associated with litigation, such as excessive legal fees and expert reports, the most significant cost driver is the number and extent of claims. Potential problems identified in the current system of resolving medical negligence claims in the UK include issues with claimants not making a complaint or claim, claims being delayed, claimants experiencing difficulties in funding claims, and expense of experts (NAO 2001, Symon 2000, Fenn et al. 2000).
2.9 The primary goal for an optimal medical negligence scheme should be to prevent errors from occurring in the first place. The number of adverse events and claims paid out in Scotland are low relative to the rest of the UK and other jurisdictions. There have been suggestions that adverse events and claim costs have been increasing in recent years (Aiken et al. 2001, Ross et al. 2000), Symon 1999).
2.10 Fault-based schemes focus solely on the need to prove negligence. It has been argued that this does little to improve the quality of care, produces defensive medical practices, discourages error reporting and institutional learning, and blocks transparency. It has been argued that no-fault schemes address many of these faults (Studdert and Brennan 2001).
Aims and objectives of the research
2.11 Our research was commissioned in order to inform the Working Group's review. The research has been conducted in three parts:
1. A comparative literature review of the existing no-fault schemes (including New Zealand, Finland, Sweden and Denmark): Farrell, A-M., Devaney, S., and Dar, M. (2010) No-Fault Compensation Schemes for Medical Injury: A Review. Edinburgh: Scottish Government published as Volume II of the Working Group's Report;
1. An empirical study of the views of key stakeholders and pursuers concerning the implications of a no-fault scheme, and the analysis of closed medical negligence claims under the present system. The findings of this research are presented in Chapter 3 of this report;
2. Estimates of the potential costs in a typical year over the recent past of operating the NFS proposed by the Working Group based on CLO data which are presented in the Appendix to this report.
Research history on medical negligence
2.12 Our research is the first systematic study of medical negligence claiming in Scotland, and is the first attempt to triangulate data from pursuers, other stakeholders and claims. There is a large body of work that has examined different medical negligence schemes. This literature is summarised by Farrell et al (2010). However, there is very little work on the views of actual stakeholders who are impacted by medical negligence and the subsequent claims.
2.13 Most studies have collected the views of pursuers and have been conducted in the US (Hickson et al. 1992, May and Stengel 1990, Huycke and Huycke 1994). In the UK, the only work directly involving claimants has been conducted by Charles Vincent, who examined motivations for suing (Vincent et al. 1994). Since this study substantial changes have occurred in the way in which the NHS deals with complaints and the role of risk management within the medical profession. Most other research in the UK has focused on patients who have made a complaint, rather than those who have pursued a legal claim (e.g. Mulcahy et al. 1996, Mulcahy and Tritter 1998).
2.14 There has been no previous examination of the experiences of medical negligence pursuers in Scotland. The Expert Group on Financial and Other Support (Ross, 2003) reported on the provision of compensation for Scottish patients infected with HCV or HIV from blood treatment. It relied on submissions, rather than systematically contacting stakeholders and pursuers. They noted that a no-fault scheme may offer the advantages of early resolution, reduction of legal costs and decreasing stress on pursuers and defendants alike. However, it also expressed concern that a no-fault scheme may not necessarily offer accountability or increase the quality of care. Although consideration of a no-fault scheme was outside its remit, it did identify a number of issues. First, it suggested that medical causation rather than negligence (as under the New Zealand and Swedish) schemes be used as the basis for compensation. Second, it warned that a no-fault scheme would cost substantially more than the existing scheme. Third, a no-fault scheme would not establish deterrence or accountability. While the Expert Group also found support for placing the onus of proof on the NHS rather than pursuer, they did not go so far as to recommend this change.
2.15 In Scotland, as in other jurisdictions, researchers have primarily focused on the nature of complaints, patients' experiences of the complaints procedures, and barriers to raising a complaint or a concern. These studies include Annandale and Hunt's (1998) survey of patients, which focused on reasons for concern and actions taken. The most recent work into patient's complaints consists of the Scottish Health Council's (2009) report which mapped complaint mechanisms and involved a survey of patients as well as focus groups, and examined reasons for complaints, actions taken, experiences of complaining, and use of support agencies. Other studies in Scotland have also investigated actions taken by people with a potential legal problem (Genn and Paterson 2001, Pleasence et al. 2003, Pleasence et al. 2006).
2.16 While there is little research on the experiences and perceptions of pursuers, there is a large body of research that has looked at how litigation or the threat of litigation affects the behaviour of medical practitioners. For the most part, this work has examined the rise of defensive medicine as a reaction to doctor's anxiety about the threat of litigation (Tancredi and Barondess (1978), Bishop et al. 2010, Charles et al. 1985, Elmore et al. 2005, Katz et al. 2005, Kressler et al. 1988, Rodriguez et al. 2007, Sloan et al. 1989, Studdert et al. 2005, Weisman et al. 1989, Woodward and Rosser 1989, Zuckerman 1984). Fear of litigation has also been shown to deter doctors from disclosing medical errors (Berlin 1997, Chan et al. 2005, Gallagher et al. 2003). In the US doctors' concern about the impact of litigation on insurance premiums is a significant factor in producing defensive medicine (Studdert et al. 2005). Defensive medical practice, as a result of concern about complaints or litigation, also occurs in the UK (Passmore and Leung 2002).
2.17 Such studies have largely relied on surveys of doctors' self-reported behaviour. Research that utilises clinical scenarios suggests defensive medical behaviour is exaggerated (Klingman et al. 1996, Glassman et al. 1996). Fear of litigation appears to have the same effect on behaviour as actually being sued (Charles et al. 1985, Weisman et al. 1989, Elmore et al. 2005) and doctors exaggerate the risk of facing a malpractice claim (Annandale and Cunningham-Burley 1996, Ennis and Vincent et al.1994, Lawthers et al. 1992).
2.18 Interviews with doctors who have gone through medical malpractice litigation show that doctors struggle with feelings of anger, betrayal, shame, humiliation, isolation and loss of confidence. Doctors who have been sued reported symptoms of stress-related illness and very few had talked to anyone about their experiences or sought any other form of support. Doctors also reported that being sued had undermined their relationship with patients, and that their satisfaction with their career had decreased (Charles et al. 1984, 1985, 1988, Martin et al. 1991, Saberi et al. 2009, Shapiro et al. 1989, Ennis and Grudzinskas 1993, Ennis and Vincent 1994, Rosenblatt et al. 1990). Similar results have also been reported in New Zealand following a medical complaint, rather than a legal claim (Cunningham 2004a). Complaints have also been shown to result in defensive medical practices (Cunningham and Dovey 2006).
2.19 Finally, there is a large body of work that has investigated the outcomes, process of negotiation and trends in medical negligence claiming through analysis of closed files. Most of this work has been conducted in the US, and has used insurance company records (Danzon 1982, 1990), regulator databases (Black 2005, Vidmar 2005 et al.) and jury verdicts (Bovbjerg and Bartow 2003:3, Chandra et al. 2005). Studies have also drawn on claimants' medical files in order to predict incidence rates of adverse events, as well as analysing the types of events which activate claims (Brennan et al. 1991, 1996, Jost et al. 1993, Bismark et al. 2006, Dunn et al. 2006). Research in the UK has generally followed the American approach, focusing on estimating frequencies of adverse events and reporting claim costs (Ham et al. 1988, Fenn 2002, Fenn et al. 2000, 2004, Vincent et al. 1994, 2001). These studies have not attempted to examine the Scottish situation separately, with its separate NHS and legal systems.
2.20 Our research on the current system involved three components:
- Interviews with 30 pursuers
- interviews and/or focus group with 42 other key stakeholders
- Analysis of claims data provided by the CLO concerning files closed since the introduction of Crown indemnity in 1989.
2.21 We conducted 30 interviews with pursuers, accessed via solicitors who specialise in medical negligence claims. Our sample does not represent a cross-section of people who have potentially experienced a clinical injury, as we only spoke to people who pursued a legal claim. By 'legal claim', we refer to the intimation of a claim, which involves an investigation in order to ascertain whether negligence occurred. Often claims do not continue past this initial investigation, especially if a medical expert is not supportive. We have no direct evidence on why a patient may not pursue a complaint or a claim after suffering an adverse event, why some aggrieved patients complain but not others, or why a patient who has complained decides not to continue with a legal claim.
2.22 Our recruitment method also meant that we were unable to speak to pursuers who did not use a specialised solicitor. This could be an important issue in Scotland, as there are only six accredited pursuer specialists, all located in either Edinburgh or Glasgow. However, see our analysis of the CLO data, reported in Chapter 3.
2.23 The interviews followed the pursuer's story about their experience which led them to make a claim, rather than trying to ascertain the 'facts' of their case. This approach is very different from that used in previous research, which has almost exclusively relied on questionnaires. Our approach provides qualitative data which allows for an in-depth exploration of themes that emerge from pursuers' narratives, rather than being limited to testing pre-decided hypotheses. Interviews allow the pursuers to tell 'their story'. For many of the pursuers interviewed, their main motivation for pursuing a claim was that they had not felt listened to by medical professionals. The use of open-ended questions allowed pursuers to give voice to their experiences, and we did not want to further disempower pursuers by using pre-set questions. The interviews covered some difficult emotional issues, and we were conscious that it was important to take a sensitive approach.
2.24 Our recruitment method relied on pursuers replying to our information sheets and consent forms. They had possibly gone through very traumatic experiences and we assumed that no response meant that they did not want to be interviewed. Although response rates increase with the number of efforts to obtain consent (Dillman 1978), we felt that follow up reminders were insensitive. This has undoubtedly produced a biased sample. It is quite possible that we have accessed people who are particularly motivated to speak to researchers, meaning that we have spoken to pursuers who felt invalidated by the process and sought recognition by someone 'official' listening to their story. There was a strong divide between the views of pursuers who received compensation (expressing strong satisfaction with both the process and outcome), and those that did not receive any compensation (much more dissatisfied with every aspect of their claim).
2.25 Only five of the thirty pursuers whom we interviewed had received compensation (three for minor injuries where the insurer admitted liability immediately and settled quickly, two were very long, drawn out claims involving serious injuries, none went to proof). Twenty pursuer interviewees were women. Although they were contacted via firms located in Glasgow and Edinburgh there was a geographical spread. Pursuers fell into two broad categories: those who suffered from injuries that they felt were serious and had a major impact upon their lives and those who pursued a claim after their spouse or child had died following a medical procedure.
2.26 We conducted interviews and/or focus group sessions with 42 other stakeholders including pursuer solicitors, representatives from defender groups, patient support and advice groups, representatives of medical practitioner interests groups, Independent Advice and Support Service (IASS) advisors, NHS staff involved in resolving complaints, patient liaison, legal services and financial managers, medical practitioners including practitioners from midwifery, general surgery, accident and emergency, obstetrics, and critical care. We conducted a mix of face-to-face and telephone interviews and focus groups. Participants came from across a number of the Health Boards.
2.27 Claims analysis was conducted on data provided by the CLO concerning closed files. This data has the potential to provide the general sweep that our pursuer interviews cannot capture. However it must be recognised that the data supplied to us by CLO has been collected for case monitoring purposes and not specifically for the research which we were undertaking. Thus it does not necessarily capture all of the characteristics of individual claims which would be useful. However, it provides for a much more nuanced survey of the topography of medical negligence claiming in Scotland than can be provided by aggregate data on claims settled. This data set contains information on many thousands of claims dating back to the 1980s. Because the early data in this file is deemed less reliable than the more recent data we will only analyse data from the more recent past in Chapter 3.
2.28 The CLO data set provides information at the level of an individual claim. Previous analysis of medical negligence claims data in Scotland (Ross 2003) reports aggregate and average award and expenses data. However the distribution of awards is highly skewed, with a small number of very large awards distorting both the aggregate and average data. Furthermore, the high value claims are associated with particular areas of medicine which are not representative of all areas. The statistical analysis of the disaggregated CLO data allows account to be taken of the differences across medical specialisms in both claiming and settlement costs. Previously published aggregate data for CLO costs (Ross, 2003) did not distinguish between the costs incurred in a given year for claims settled in that year and ongoing claims. It would be misleading to apportion all cost incurred in a year to closed claims. The cost data on individual claims made available to us by CLO has allowed us to distinguish between the costs of settling small value claims (less than £20,000), the costs of all settled claims and the costs to the public purse of unsettled but closed claims.