The cost of negligence will hurt us all

The MPS has serious concerns that the rise in the cost of negligence claims may have a negative impact on healthcare, writes Dr Stephanie Bown.

The Medical Protection Society (MPS) has serious concerns about the rise in the cost of clinical negligence claims and the impact that this is having on the public purse, individual healthcare professionals, and the implications that this may have on the quality and choice of healthcare for the Irish public.

As a not-for-profit membership organisation offering professional indemnity to more than 16,000 health professionals in Ireland, we are seeing record numbers of negligence claims being brought against members. Last year, the number of claims notified against private consultants increased more than 2.5 times the level we saw in 2007, while the number of claims against GPs doubled over the same period.

In addition, the total cost of claims is increasing way in excess of retail inflation. The highest settled claim that we have seen in Ireland cost around €6.8 million and related to a patient who died following complications of surgery. The highest value claim to date settled by the MPS on behalf of a GP was around €2.5 million, which involved birth injury leading to cerebral palsy. Claims for catastrophic injuries which might have settled for €3 million five years ago might today be expected to settle for around €6 million or more.

We do not believe the increase in claims reflects a deterioration of professional standards. It is in part a symptom of change in patient expectations. As many patients now expect greater involvement in — and understanding about — their healthcare, an increasing challenge for doctors is to manage patient expectations. It is essential that doctors are able to communicate effectively with their patients and set realistic expectations, which can reduce the likelihood of disappointment and therefore possible claims and complaints.

While patients should not be inhibited from speaking out if they have a negative experience, this has to be considered against a backdrop of clinicians being asked to do more with less. This is a perfect storm; doctors struggling to provide services because of a lack of resources, at a time of increasing expectations and intolerance of human error.

Culture of openness
MPS has long supported and advised members to be open with patients when something has gone wrong. We strongly support the HSE’s policy on open disclosure, and have provided training to help equip hospitals in Ireland to promote a culture of openness, as a critical way to improve the quality and safety of healthcare. We also support members through a range of bespoke workshops.

Myths perpetuate that claims and complaints only arise from poor practice, that only bad doctors are sued and that increased complaints are an indicator of increasingly unsafe medicine. In our experience, it is poor communication before and after an event that influences a patient’s decision to take action.

Effective communication after an adverse outcome lies at the core of rebuilding trust and supporting healing for the patient, their loved ones and the healthcare team involved. Poor or no communication compounds the harm and distress that has already been experienced.

Identifying and addressing patient expectations is also an increasingly important aspect of reducing the risk of a complaint or a claim.

Further to this, sharing information about the risks of particular treatments needs to be communicated to patients and documented in the records.

Legal costs
Plaintiff costs in Ireland are some of the highest and most disproportionate we see across the 40 countries where MPS has members.

Plaintiffs’ legal bills can be wholly disproportionate to the amount the patient receives. It cannot be right that the plaintiff’s solicitors are receiving more in fees than their client receives in compensation.

Our concern is the knock-on effect these costs, coupled with increasing numbers of claims, may have on doctors when considering the affordability of professional indemnity for their private practice. As a mutual organisation that is owned by our members, we are frustrated by this and are acutely aware of the impact that it has on individual doctors at a time when their income is frozen or falling.

Irish healthcare is dependent on the contribution made by the private sector; the State simply could not accommodate the consequences of doctors discontinuing private practice through failure to afford indemnity cover — or for any other reason.

Action needs to be taken now. Options include introducing a legal system that allows for early dispute resolution, avoiding claims going to court unnecessarily, which is where costs escalate. A less adversarial process would be less stressful and time-consuming for patients and doctors. Legal costs should be transparent and easier to challenge. A streamlined, judge-led, claims handling process would bring huge efficiencies, as would mediation for appropriate cases.

Defensive practice
A recent survey we conducted of GP members in Ireland revealed that 80 per cent of respondents practise defensively to avoid complaints and claims.1 They may order more investigations, change their prescribing habits or avoid certain procedures to help protect themselves, rather than because it is necessary in the patient’s best interests.

Doctors cannot always guarantee a successful outcome for every patient, but managing a patient’s treatment appropriately, communicating effectively from the beginning and keeping quality notes will reduce the risk of that patient bringing a successful complaint or a claim.

MPS is actively involved in discussions with the Department of Health and other stakeholders about the best way to address the rising costs of clinical negligence, and understands and addresses the causes of the increase in claims and complaints.

We recognise that the working group on clinical negligence and the Legal Services Regulation Bill has considered some of these issues. However, MPS strongly believes that immediate action is required to address the spiralling costs and the increasing threat this poses to the public purse, public health and health professionals in Ireland.

This article is courtesy from the Irish Medical Times.