A Familiar Story?

By Matthew Best, Director – ATE Partnerships, Head of Personal Injury & Clinical Negligence

Estimate read time 3 minutes 4 seconds

Reading a recent Law Society Gazette article titled ‘Bills of Health’, I was struck by how familiar the debate felt. The latest in a two-decade cycle of reform proposals, rising NHS clinical negligence liabilities, parliamentary scrutiny and recurring attempts to reduce damages and legal spend. Yet the same fundamental questions remain.

There is no doubt that the rising cost of clinical negligence claims deserves attention. However, the system’s true cost driver is often not the claim itself, but the patient safety failures that give rise to it, compounded by delay, defensiveness and a lack of candour when things go wrong.

It is entirely reasonable to be concerned about affordability. Every pound spent on compensation and transactional process is a pound not spent on frontline care. However, the Gazette article rightly highlights the danger of treating cost as the problem when it is often a symptom. If the incidence and severity of avoidable harm does not reduce, reforms that cap recoverable costs, restrict access to representation or limit the damages available to injured patients will largely shift the burden elsewhere – onto injured patients, their families and, ultimately, other parts of the health and social care system.

The Public Accounts Committee’s focus on “disproportionate” costs in claims worth less than £25,000 is politically understandable, but it risks overlooking the reality of clinical negligence litigation. Investigating breach, causation and quantum is often complex regardless of the eventual damages figure, particularly where the harm is significant but the financial loss is comparatively modest.

If fixed recoverable costs are set too low, the likely outcome is the rationing of justice. Meritorious lower value claims become commercially difficult to pursue and a two-tier system emerges, where high-value cases continue while many lower-value patients struggle to obtain effective redress.

On patient safety, the Public Accounts Committee is right to be impatient with what it describes as a “plethora of data” that remains too fragmented to drive meaningful change. A more consistent national approach to harm reporting, classification and causal analysis, combined with the time and resources needed to implement learning, would make it easier to identify recurring risks such as medication errors, maternity failures and diagnostic delays.

Just as importantly, the objective should not be to produce more recommendations. It should be to close the loop. Fewer actions, owned by named individuals, tracked through to completion and measured against actual reductions in patient harm.

Ultimately, the Gazette article’s conclusion is persuasive. Collaboration is necessary, but on its own it is not enough. If government genuinely wants to reduce the long-term cost burden, it should publish the evidence underpinning reform proposals, including the work undertaken by David Lock KC, commit to measurable patient safety improvements and redesign dispute resolution around speed, candour and learning rather than deterrence through under-compensation.

Reducing transaction costs is a legitimate objective. However, it should be the result of safer care and faster, fairer resolution of disputes, not the sole purpose of reform.

What This Means In Practice

• Reduce harm first – sustained investment in patient safety and implementation capacity remains the only durable cost-control strategy.
• Address delay and defensiveness – earlier admissions, disclosure and interim support can improve outcomes while reducing legal spend.
• Be cautious with fixed recoverable costs – proportionality concerns in lower-value claims do not mean the work involved is low complexity.
• Avoid blunt “double recovery” reforms – policy changes should not rely on NHS capacity that may not exist in practice.
• Publish the evidence – transparent policy-making builds trust and allows reform proposals to be tested against their stated objectives.

If you would like to discuss any of the issues raised in this article, please contact Matthew:
Phone: 01483 514804
Email: Matthew.Best@temple-legal.co.uk