The media, the clinical negligence divide
Two sides of the same coin
January can be an infuriating time for clinical negligence lawyers. NHS Resolution, the body which manages clinical claims and disputes on behalf of Trusts, publishes its data setting out the amount of costs purportedly paid to Claimant’s lawyers each year and it usually results in an ill-informed campaign to restrict claims and the legal costs incurred in pursuing the claims.
Historically the media has reported this from the perspective, ironically most vigorously promoted by insurers meeting the cost of negligent private treatment ; costs are increasing, the NHS is under pressure and something needs to be done to stop the number of clinical negligence claims, or at the very least reduce the cost of those claims.
Claimants are often referred to in pejorative terms, as “lottery winners” and their legal representatives as ambulance chasers. Little, if any attention is paid to why the number of claims is said to be increasing, let alone the fact that the numbers are in reality falling.
The real issues is whether the NHS is actually learning from mistakes, cutting out errors, thereby doing away with claims in the best way possible, or simply focussing on trying to drive down the cost of paying for such errors, making each mistake cheaper in the future. For many, a claim is a last resort and quite often the only course of action left as a result of the unfeeling way that a Trust has declined to properly investigate a situation. The vast majority of clinical negligence claimant’s and their lawyers actually bring claims because they want to see changes in the system and make medicine safer for all. Quite often the first words a client will say to a solicitor at their first meeting are “I want to make sure this doesn’t happen to anyone else”.
Despite this background, many reporters appear to take the approach of trying to discourage claims, allegedly in the interest of the greater good; an example being this report from the Guardian in 2017.
So you can see why, come January, those of us who represent injured and vulnerable Claimants get on our soap box. But this year things have been a little different and may be, just may be the winds of change have started to blow. Following the usual critical headlines after the NHSR report, the nature of reporting has subtly shifted away from the perceived impact that these claims have on the NHS, to focussing on the story of those who actually matter in this piece, the patients concerned.
This year, the BBC’s coverage was refreshing to say the least. Amongst a range of cases, reported with an unusual degree of sympathy, it focussed on the story of a couple who felt they had no option but to pursue a claim after all other lines of enquiry had been thwarted, in an attempt to find out why their child had died.
A significant element of the report was given over to patient safety groups like APIL and AvMA, who are invaluable in speaking up on behalf of those affected by avoidable poor treatment. They, quite properly, tried to focus the debate on asking why the NHS and medical defence unions are refusing to properly investigate concerns, preferring to focus on making each repeated failure cheaper for them settle.
Since then there have been a plethora of reports highlighting the plight of those facing the difficult process of complaining about poor treatment, seeking answers about the death or injury of a loved one:
In addition there has been widespread coverage across all media of baby deaths in the East Kent investigation (Daily Mail) and Dr Ian Paterson (The Independent), the latter exposing the unconscionable black hole that exists in protecting patients of private doctors.
The approach is promising; acknowledging the need to properly review and learn from these events, rather than turning it into a vilification of money grabbing claimants’ and their lawyers.
Of course, we are not advocating a system where the NHS and private providers must concede every allegation that treatment fell below an acceptable standard. Defendant’s must be encouraged to defend claims that do not pass the legal test that opens the door to compensation, in the interest of safeguarding valuable resources that could be ploughed into the healthcare system. What we advocate is a balanced review in the media on the issue of clinical negligence, which might even result in brining those on either side of it closer together.
The media has the opportunity to build upon this more balanced platform it has created in recent months. It has the ability to empower patients who want to drive change and improve outcomes for patients, as opposed to stigmatise and stereotype them; and the intellect to delve into the core of the issue of negligence claims, should it choose to do so. It has the power not to pick a side of the fence to be on, but to tear it down and foster a more productive and beneficial era in which clinical negligence litigation can be a collaborative exercise, which can provide for individual Claimants and society as a whole.