Faith in failure

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When negligence in healthcare results in injury or permanent disability it is hard to perceive any positives for the person concerned. But, argues Karen Rawsthorne, the situation is far less clear cut when compared to incidents deemed unavoidable

Is negligence in healthcare necessarily a bad thing? An obvious response to this question would undoubtedly be an emphatic 'yes' from any insurer or professional indemnifier. By definition, the very existence of negligence must be bad because it leads to avoidable financial outlay. But if this issue is examined in the wider social and economic context, the answer is not necessarily as clear cut. After all, we live in a world where the average person is able to insure against more or less any type of loss.

It is said that the practice of medicine is an art, not a science. While many common medical situations produce the same symptoms in different people, and their progress can be predicted with relative certainty, sometimes the way a patient's condition progresses is frustratingly unpredictable. At other times, it is the situation that provides limited certainty. For example, a doctor faced with a trauma patient has to make split-second decisions, often with limited knowledge of the patient's medical history, because the situation is so time-critical. Therefore, the only thing that can be predicted with certainty is, in the field of healthcare provision, unpredictable circumstances will arise.

When permanent injury or disability to a patient results unexpectedly, it usually gives rise to an investigation into whether or not the injury could have been avoided by better or different treatment. Sometimes the answer is yes but more often in these risk-averse times, the answer is no. Nevertheless, the practice of medicine is still inherently risky.

Where a bad outcome is avoidable, both serious and relatively minor injuries will typically lead to compensation claims. In respect of clinical incidents arising from care provided by the NHS, the NHS Litigation Authority assumed the role of both compensation and legal costs payer when established in 1995; it is a public body and so is funded by taxpayers. Consequently, limiting the chances of negligence would minimise liabilities - obviously benefiting everyone.

Incidents within the private sector are usually funded either by medical defence organisations or the private hospitals themselves. These indemnifiers and insurers would no doubt agree that, when negligence equates to large payouts, negligence is a bad thing.

To assist potential claimants, funding for the legal costs of clinical negligence claims by the publicly-funded Legal Services Commission is available as long as the costs-to-damages ratio is within LSC parameters. But it is fair to say that such funding is no longer as easily obtained as it was even five years ago. For example, if a patient is so badly injured that they can no longer work to support themselves and their family, the legal system provides the means to achieve appropriate financial redress without recourse to the public purse in terms of ongoing state benefits. However, it would be wrong to suggest that such negligence cases do not impact on the allocation of public funds as a whole.

Out of options

Where negligence cannot be established, an injured or disabled person might have no recourse to compensation and any future financial assistance will be limited to state benefits. But that individual might have the same or greater needs than the negligence patient. This creates a situation where the answer to the initial question is possibly 'no'. Negligence can be viewed as a good thing when it creates financial certainty for the injured or disabled person in circumstances where they bear no blame for their circumstances.

For example, two babies are born within minutes of each other in the same hospital. Both suffer serious brain injuries at birth, with the first baby's disability caused by negligent delay while the second baby's disability is deemed unavoidable. In due course, the first child's financial future will be secured by the payment of a multi-million pound award of compensation, possibly with index-linked periodic payments to guard against rising costs of care in the future. The second child, however, has no such certainty and will be vulnerable throughout its life to the whims of successive governments' policies, which will ultimately determine the levels of state benefits and local provision of health and social care.

In another case, recently and widely reported in the media, actress Lesley Ash was awarded around £5m after contracting an avoidable infection in hospital which caused her significant physical disability. A large proportion of this award was determined by her projected lost future earnings: as a past high-earner, she was bound to recover more in damages than someone with average earnings notwithstanding that their injuries and level of disability might have been the same. It is probably fair to say that her larger award will make her ongoing disability easier to live with, on a practical level at least, but as such little comfort is to be had from the case for those not in her income bracket.

Where negligence - or its absence - can have such far-reaching financial effects, is there any way of protecting the second child, as described in the brain injury example, and the average earner in terms of insuring against the healthcare risks illustrated by these examples? Pre-natal insurance exists in the US but here in the UK - where the free-at-point-of-need NHS sentiment prevails - the product does not appear to be popular.

As for the average earner, permanent health and critical care cover are readily available, but the modest take-up of these products suggests many people still believe either their future health and financial security are more predictable than is really the case or, if the worst were to happen, someone must be at fault so compensation is sure to follow. So, perhaps, for those who remain uninsured for health risks they would say negligence is not necessarily a bad thing after all.

- Karen Rawsthorne is an associate in Halliwells healthcare team.

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