Why Do People Bring Clinical Negligence Claims?

Paul Sankey - Enable LawIt is difficult to know how many patients suffer harm from medical mistakes. Estimates from 2000 put the number of mistakes at an astonishing 850,000. If those figures were correct in 2000 they will be higher today. Some of course will not have caused harm. But given that only 17,338 were brought against the NHS last year, it seems that very few victims of medical accidents bring claims. The question is not why there are so many claims but why there are so few.

Many people say that they are not in it for the money. That may be true. Research suggests that money is the priority for only 20% of claimants.

WHY PEOPLE CLAIM -Behavioural Insights

NHS Resolution (which handles claims on behalf of NHS Trusts) has recently commissioned some research from the Behavioural Insights Team on what makes people bring claims. The results are interesting and confirm the experience of those of us who work in this area.

The research estimates that only one in ten people who experienced an incident went on to bring a claim. Again, my question is why so few?

The report looks at 3 types of factors which need to be present for people to bring a claim.

1. Capability

People must be capable of bringing a claim. They need certain skills. The claims process is only really possible for those who are literate enough to instruct solicitors, make their case and read documents. Family support or previous experience of claims may also help. I would comment that the loss of legal aid has probably denied access to justice to many (besides, ironically, driving up the cost of claims).

2. Opportunity

People may need prompts to seriously consider a claim. For instance about 30% of interviewees for the study had been encouraged by medical staff to consider a claim. Others are prompted by advertising which alerts them to the possibility of bringing a claim without cost and risk to themselves. Many are prompted by conversations with family or friends.

3. Motivation

Motivation is perhaps the most interesting factor. It is one that medical staff may be able to address without taking away people’s capacity or opportunity to bring a claim. People need not only capability and opportunity but something must make them want to.

One of the key factors is frustration with the way their complaints were handled. This was a factor for 93% of claimants – almost all. So it is only in less than 1 in 10 of claimant that frustration is not a factor. During interviews people used quite strong language to describe their feelings – words like ‘frustration’, ‘anger’, ‘livid’ and ‘furious’.

So it seems that the way complaints or mistakes are handled is a factor driving claims. This is very significant. It is a factor within the control of health professionals. It suggests that handling complaints well may actually prevent claims.

However, anger and frustration were not the only motivations found by the research. Many people reported the following motivations:
• To prevent similar things happening to others
• To get an apology
• To get a detailed investigation and explanation
• To hold clinicians to account

Financial compensation was important to several. The way they expressed this was wanting to make good their loss. For instance interviewees said:

‘It wasn’t to sue them and line my pockets, it was just to try and get the money so that I could afford [corrective surgery]’.

‘I was just very depressed because I had lost a huge amount of money’.

‘I thought, right, I need to try and do something here because I need some money to be able to manage for what is going to be the rest of my life’.

Making good loss for people who have suffered from avoidable medical mistakes is exactly what the system tries to do. The goal of damages is so far as possible to put people in the position they would have been in but for the negligence. Strictly speaking ‘compensation’ is not what our damages system does. The aim is restitution.

There is nothing particularly surprising about the report’s conclusions. I have been speaking to doctors about how to avoid claims for some time now. My advice has been that people bring claims not just because they have suffered harm but because:
• they don’t feel listened to;
• they feel communication with their clinician has broken down;
• they feel a lack of trust;
• their expectations have not been met; or
• they don’t have confidence that they have been treated openly and honestly when things go wrong.

So this is a helpful report which provides evidence for what many of us knew already.

We Need Better Complaints Handling IN MEDICINE

Medical staff may be worried that if they admit to mistakes they will be sued. The report actually suggests the opposite may be the case. There is still a need to reduce the amount of medical mistakes. However a key to avoiding claims is to address the things that motivate people to bring claims. Being open and honest and admitting to mistakes is part of that. Not only is it the right thing to do both legally (health professionals have a ‘duty of candour’) and morally but it may also be the way to reduce the cost of litigation to our health service.