A new model of clinical negligence litigation?

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As the law currently stands in the UK, clinical negligence is required to be proved for compensation in event of an injury caused by the mistake of a clinician. This may seem entirely reasonable in the context of a national health service that must bear the burden of these claims. However, it has been identified that clinical negligence litigation places a significant strain on these services and takes attention away from preventing such mistakes in the future.

A successful claim in clinical negligence requires a breach of a duty of care by the prescribed clinician that has resulted in injury to the claimant. Difficulties arise in establishing that the actions of a clinician, or their failure to act with the required care and skill, has caused injury. There is an accepted level of risk in medical treatment and the existence of an injury is not necessarily indicative of negligence. Beyond this, there is difficulty in establishing the cause of an injury when there is a wide range of extraneous factors such as susceptibility and pre-existing illnesses to be considered, even if negligence has been established.

Consequently, trying to prove clinical negligence is time-consuming and costly. By extension, it prevents those who have suffered an injury in a medical context from being awarded the necessary compensation. Infant birthing disabilities are the most prominent example of the negative consequences of the current system. When a child is born in the UK with a severe disability and a successful claim in clinical negligence cannot be made, this poses a significant risk to the child’s health. If parents do not have the financial capacity to give the child the necessary care and must rely on a clinical negligence claim to gain this, litigation will take place for years causing harm to both the child and our health service.

This can be contrasted to the Swedish model in which clinical negligence does not need to be proved to be awarded compensation. In Sweden, compensation can be awarded where clinicians accept a mistake has been made, but this does not need to fulfil the requirements of clinical negligence. This encourages a system of cooperation to prevent the negative effects of extensive litigation in a stark contrast to the British adversarial system that is currently focused on blame attribution.

Fortunately, whilst there is no anticipated legislative change as of yet, a shift in culture has been reported in the UK with parties aiming to resolve disputes at earlier stages. This has allegedly been influenced by the pandemic with claimant and defendant lawyers engaging in greater collaboration and following the new case-handling protocol. It is of interest to see whether this collaborative approach can replace the perceived necessity of an overhaul in clinical negligence.

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