Nobody was at fault

author image - oliviah

By Oliviah Rix-Taylor

on Thursday 4 January 2018

Medical negligence claim form

Nobody was at fault; cashing in or cashing out?

As it stands in current law, the role of ‘fault’ is the determining element in winning a clinical negligence claim, but for a no-fault scheme, compensation will be paid to the claimant without having to establish liability.

This isn’t a new concept; with about 20 tradesmen dying every week due to illnesses relating to past exposure to Asbestos, claims handling needed to be simplified. Schemes such as The Workers Compensation Act (1979) established a pneumoconiosis payment award to provide a lump sum to those exposed to asbestos in the UK during their employment.

The people affected by negligent employers did not need to take them to court, they did not need to hire a solicitor and they did not have to wait lengthy times to receive their compensation. The only requirements for the lump sum were that you could medically prove you were at least 1% disabled as a result of your illness or that you were in receipt of Industrial Injuries Disablement Benefit for an asbestos-related disease. Bargain?

Having never been involved with someone who is suffering from an asbestos-related disease, I am hesitant to deconstruct the remuneration system that financially helped these people, but perhaps you feel like me, that someone got off incredibly lightly here - the negligent employers.

And herein lies a core problem of a no-fault compensation scheme; everyone, including those at fault, is blameless.

Recently, the call to introduce this type of compensation scheme for medical negligence in the NHS has been resurrected by the Scottish government. In 2009, a working group was founded to establish the effectiveness of a no-fault compensation scheme in response to the soaring cost of negligence claims.

In 2014 the advantages of the scheme were published in a government report and indeed, many benefits of such a scheme were determined. However, the more astute amongst us may be able to spot the weighted side of the coin here;

Reported benefits include;

  • Greater efficiency, both in terms of time and cost for the NHS
  • Ease of pressure on healthcare professionals
  • A cap on the escalating insurance costs for healthcare professionals
  • A reduction in costs and administrative burdens on the courts.

In fairness to the authors of the report, they were incredibly transparent when it came to the disadvantages of a no-fault compensation scheme, and the coin falls with a heavy thud;

Reported costs include;

  • Lack of national affordability for such a scheme
  • Much lower compensation payouts for claimants
  • Restricted access to the Courts, potentially infringing human rights laws
  • Lack of key elements of redress such as apologies and explanations.
  • Avoidable accountability in the medical and institutional realms.

The current system determines negligence by proving that a 'duty of care' was owed and that a breach of that 'duty of care' caused injuries to the claimant.

At fault, compensation is accused of lengthy delays and substantial costs, but with the advance of No Win No Fee agreements, financial risk for the claimant has been significantly reduced.

Removing your right to a courtroom might speed up the process of receiving a compensation award, but the delays in receiving your compensation could be justified by receiving a more deserving payout.

Arguments of a financial nature seem reasonable enough, but there would appear to be a greater moral objective at risk here. If medical staff won’t be held accountable then claimants will lose above all, an apology for the harm and suffering they endured at the hands of those who vowed to cause the very opposite.