Why UK Physicians Are Now Getting Sued More

Leigh Page

February 19, 2020

A 49-year-old man visited his physician in the UK's National Health Service (NHS) complaining of chest pain, severe vomiting, and breathlessness. The physician diagnosed acute gastritis and prescribed painkillers and antacids.

The next day, the man's condition deteriorated, and he was admitted to the intensive care unit. He was diagnosed with septicemia and toxic shock syndrome and was in a state of multiorgan failure. The doctor was sued for initially making the wrong diagnosis. The suit claimed that the misdiagnosis caused a 1-day delay that allowed the patient's condition to worsen.

The NHS refused to admit liability but agreed to settle for £1.2 million ($1.57 million). The bulk of the payment covered the claimant's loss of earnings due to the infection. The man was off work for 1 year and was permanently unable to work at his previous level.

This medical malpractice lawsuit might not have taken place years ago, but such suits are becoming more common in the UK. The NHS is struggling with a surge in medical malpractice lawsuits and payouts.

At one time, many US doctors looked to the UK as inspiration for how medical malpractice lawsuits could be averted and dealt with. But the number of malpractice claims against the NHS doubled between 2007 and 2018, from 5300 to 10,600. The number of costly claims, especially those involving newborns, also doubled during that period. Altogether, malpractice payouts by the NHS rose from £583 million ($761.8 million) in 2008 to £1.4 billion ($1.83 billion) by 2016. This threefold increase put extreme financial pressure on an already overstretched national health service.

What's happening? Some suspect that NHS patients, once litigation-shy, have now decided that lawsuits are acceptable.

Many Britons view the growing propensity to sue as an unwelcome American import. "Our infatuation with the 'ambulance chasing' society created by America has gone far enough," commented a reader of an article published by BBC News.

"Patient behaviour has undergone a significant change in recent years, in a way that may lead to an increase in the likelihood of a claim arising," the British Department of Health stated in 2016.

The British government views the rise in malpractice payments as a huge threat to the NHS ― siphoning off hundreds of millions in funds that could have gone to patient care.

The overall cost of claims is still rising, and British health authorities don't consider the trend to be over.

What has changed? There are two main factors.

1. "Loser pays" rule for lawsuits is no longer mandatory.

As in much of Europe, the UK courts have long had a "loser pays" rule, which directs the loser of a lawsuit to pay the legal costs of the winning party, thus discouraging frivolous lawsuits. The US legal system does not have this rule, making it easier for patients to file lawsuits.

However, the impact of "loser pays" eroded after Britain started allowing attorneys to offer "no win, no fee" arrangements in 1998. Claimants only pay the attorney if they win the case. To protect attorneys from losses, the claimants are required to buy "after-the-event" insurance, which covers their fees in case they lose. This special coverage can cost as much as £5597 ($7350) annually.

Use of "no win, no fee" has allowed lawyers to take on cases that are less than a sure thing. As a result, one study found that meritless lawsuits made up about 30% of outstanding claims against the NHS in 2017.

Use of "no win, no fee" has allowed lawyers to take on cases that were less than a sure thing.

2. British juries don't decide claims.

Another difference from the US system is that in the UK, only judges, not juries, decide medical malpractice cases and the size of damage payments. Because judges tend to be more objective than juries, this difference supposedly tamped down the size of damages awarded in the UK.

In recent years, however, the highest UK medical malpractice awards are progressing toward levels that are awarded in the United States.

Very high US payouts hover around $50 million and can be even higher. In comparison, the highest NHS payments in recent years include £19 million ($24.8 million) for a delayed transfusion of a baby girl; £23 million ($30 million) for an improperly inserted heart device that left a toddler brain damaged; and £24 million ($31.3 million) for an operating room mistake that left a woman brain damaged.

The increase in payouts is also related to the following:

1. Growth of high-cost lawsuits. Payouts in millions of pounds often involve babies who have been permanently harmed and need special assistance for the rest of their lives. Maternity cases make up about half of all NHS payouts.

2. Higher legal fees. In UK payouts, separate amounts are provided for legal fees, which cover expert witnesses and court costs. In 2016–2017, NHS payments for claimant attorneys' legal fees reached a record high of £425 million ($555 million), but the amount was curbed after the NHS ratcheted up its challenges of high legal fees.

3. Change in the discount rate. In February 2017, the government ordered a change in the discount rate, which UK courts use to calculate future damages for the claimant, including medical care and loss of the ability to work. It is calculated on the basis of what the claimant could earn by investing the money.

4. More unpredictability in the size of payments. "There is currently a large degree of unpredictability about the size of awards, which makes it difficult to settle cases quickly and can result in long and expensive disputes," explained the Medical Protection Society (MPS), a private insurer for GPs.

Differences Between the US and the UK Medical Systems

Although the medical malpractice systems in the US and the UK share the same roots in tort law, they are very different.

In the UK, medical malpractice is called "medical negligence," the plaintiff is called the "claimant," and malpractice insurance premiums are called "cover" or "indemnity cost." The NHS now pays the cover for all of its employed physicians. General practitioners (GPs), who previously had to pay their own cover, were brought on board in April 2019.

In the UK, GPs are the equivalent of primary care physicians, and "consultants" are specialists. Residents, called "junior doctors," take care of much of the basic doctoring in the NHS.

The NHS employs virtually all the doctors and owns practically all of the hospitals in the country except for a few that are private. With 1.5 million workers, NHS England is the fifth-largest employer in the world, after the US government, the People's Army of China, Walmart, and McDonald's.

(There are separate NHS systems for Scotland, Wales, and Northern Ireland, but NHS England is so predominant that it is usually referred to simply as "NHS.")

How Does the Malpractice Climate Affect British Doctors?

Even if they don't have to pay for their own insurance anymore, all NHS doctors still feel the sting of lawsuits.

In 2017, GPs in the NHS were twice as likely to be sued for medical negligence than they were 9 years ago, according to the MPS, a private insurer for GPs. In MPS's 2017 survey of doctors, 72% said they felt more stress or anxiety about being sued, and 64% said they were reconsidering their future in the profession, owing to the risk of lawsuits.

Contributing to the anxiety felt by UK doctors is the fact that NHS doctors do not have final say on whether their lawsuits get settled. The NHS trusts ultimately decide when to settle a case. They're not interested in prolonging lawsuits or risking a large indemnity payment. This is similar to the policies of some US insurers, which may have final say for similar reasons.

Have British Patients Become More Dissatisfied?

Many fear that longer waiting times for an appointment could lead to more malpractice claims. A 2017 report by the comptroller and auditor general concluded that the rise in claims was not caused by any decline in patient safety, but it did note that longer waiting times raise "the risk of future claims from delayed diagnosis or treatment."

A 2018 survey by the King's Fund, a highly regarded health charity, revealed growing dissatisfaction of patients with their GP. Satisfaction with NHS general practice services stood at 63%, the lowest level since the survey began in 1983.

Does potential lack of loyalty to one's doctor make patients more willing to sue? Tanveer Qureshi, a British lawyer who takes medical negligence cases, doesn't think this leads to more lawsuits.

Qureshi thinks today's patients have a better understanding of the need for health and safety. "This means that when things do go wrong, more people are willing to file claims," he said. "So it is not a question of if they will sue, but when they will sue.

[I]t is not a question of if they will sue, but when they will sue. Tanveer Qureshi, lawyer

"In my opinion, it is not so much about a lack of loyalty but more about the increasing accountability of doctors and other professionals," he said. "Patients and their families are now better informed and feel more able to ask questions and challenge decisions."

The Government Is Trying to Help Avert Lawsuits and Reduce Claims

NHS Resolution, the NHS subsidiary responsible for litigation, has commissioned research to better understand why patients sue, and it has shared that information with doctors. It has issued "claim scorecards" to doctors to help them understand their risks and what they can do about them. And it has started an early notification program for families dealing with birth injuries.

NHS Resolution has also promoted mediation as an alternative to filing claims. Mediation is less costly than litigation and frequently results in nonmonetary outcomes, such as apologies.

However, many British authorities don't think these changes will have a big enough impact, and they have been advocating for changes in the legal system as a way to reduce lawsuits.

One change would involve creating a list of allowable payments for each type of injury, called fixed recoverable costs. The limit would apply to claims for less than £25,000 (about $32,560).

Fixed recoverable costs are also part of a reform package proposed in May 2019 by Sir Rupert Jackson, a retired appeals judge.

Sir Rupert said he would replace the current test for medical negligence ― whether there has been a failure that no doctor of ordinary skill would be guilty of if acting with ordinary care ― with a more simplified test ― whether the patient suffered "reasonable avoidable injury."

Sir Rupert proposed setting up a separate system, apart from the normal courts, to deal with negligence claims. This tribunal of specialized judges would also deal with disciplinary proceedings against doctors and other health professionals.

He said this would streamline the process by providing a single fact-finding hearing to facilitate both disciplinary proceedings and claims. In the US, "medical courts" have been proposed over the years, but they have not gained any support.

"It is important not to so demoralise health professionals who make honest mistakes [so] that they are driven out of the profession," Sir Rupert said. "We can ill afford to lose doctors or medical staff, who have been trained at great public expense."

Leigh Page is a freelance writer based in Chicago, Illinois.

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