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Is Fear of Litigation Affecting Your Medical Practice?

As a doctor, do you worry about medical negligence complaints? It's estimated that 37 complaints are made against doctors in the NHS in England every single day. Most healthcare professionals will experience a claim at some point in their career, according to NHS Resolution, which runs the state indemnity scheme in England. 

Its latest annual report showed the number of new clinical negligence claims and reported incidents across primary and secondary care was around 13,500 in the period from 1 April 2022 to 31 March 2023.

Effect on Doctors

A clinical negligence complaint can be a distressing and embarrassing experience for a doctor. One analysis  suggested that complaints had "very significant effects on psychological health among doctors". NHS Resolution acknowledges that finding yourself involved in a clinical negligence claim can be a daunting experience.

The Medical Protection Society deals with claims that fall outside of the NHS remit if doctors carry out private work that isn't included in the state indemnity scheme and extra indemnity insurance is needed.

Its medical director, Dr Rob Hendry, told Medscape News UK: "Doctors go into the medical profession to save and improve the lives of their patients. But medicine is not an exact science, and the healthcare environment can be extremely complex and challenging. This means mistakes do occasionally happen, which are devastating for the patient and their family, but also for the doctor involved.” 

He added that the clinical negligence claim process can also be long and stressful. “It can impact on doctors’ mental wellbeing and professional reputation, and sometimes result in them questioning their career choice, or even leaving medicine altogether,” he explained. 

Defensive Medicine

There's evidence that some doctors practice defensive medicine and carry out tests and procedures just in case, or at a patient's request, to counter any potential legal action further down the line. High risk treatments may also be avoided for the same reason. 

"In a MPS survey of over 1300 UK GPs, 87% said they are increasingly fearful of being sued. 84% said the fear of being sued has resulted in them ordering more tests or making more referrals and 41% said it has resulted in them prescribing medication when not clinically necessary," according to Hendry.

He added: "GPs routinely order tests and make referrals to other specialists to confirm a diagnosis, and may naturally be more cautious in a litigious environment. However, if the fear of legal action is driving decisions on additional tests and referrals that are not necessary, this is different and a societal concern. Doctors should be able to exercise their clinical skills and judgement without the fear of claims affecting their decision-making." 

According to NHS Resolution's 2022/23 annual report, the top four categories of clinical claims reported by volume were obstetrics, emergency medicine, and orthopaedic and general surgery. 

Its figures for the same period show the NHS paid out £2.6 billion for medical negligence claims. That's a 10% increase on the year before. However, a record 80% of claims were resolved without resorting to legal action; through mediation and dispute resolution.

Is the Public Becoming More Litigious?

Some patients may put in a complaint knowing they won't personally have to pay for legal costs whatever the outcome. A quick Google search reveals a whole raft of legal practitioners offering to make a no-win, no-fee case on a patient's behalf.

"Patients seem to have greater awareness about their rights and how to bring a clinical negligence claim against a healthcare professional. Patients' expectations are also increasing and cannot always be met," said Hendry.

"In a 2017 YouGov survey of over 2000 adults in the UK, commissioned by MPS, 65% said it had become easier to bring a claim for clinical negligence than ever before, and 33% felt they should have access to compensation when something goes wrong regardless of whether harm was caused," he added.

Saying Sorry Goes a Long Way

"Greater access to legal services and support may be one factor, but there are probably multiple factors that have contributed to the growth in clinical negligence claims over the years,” Hendry continued. “For example: an increase in the number of patients due to population growth and the complexity of their problems, increases in life expectancy and the cost of care, increased patient expectations, and an increase in workload and time pressures on healthcare professionals."

"Also, while some patients or their families may seek financial redress through litigation to support long-term care or loss of earnings, others pursue legal action to obtain an explanation or apology or to ensure steps have been taken to stop the same thing happening again," he explained.

Sometimes all patients are looking for is an apology. "At MPS, we are strong advocates of an open learning culture, where doctors can openly discuss mistakes and offer a sincere apology to patients and families without worrying about personal recrimination. A culture like this will help to ensure mistakes are learned from and don’t happen again, and will improve patient safety in the long term."

Hendry believes that a comprehensive clinical negligence strategy is needed, "setting out a range of reforms to create a more proportionate and sustainable system. This was promised by 2018, but we are still awaiting the details. It must come swiftly if we are going to get close to addressing this issue."

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