NHS negligence payouts at record levels despite landmark court case expected to reduce them

NHS negligence payouts are at record levels, despite a landmark Supreme Court case which was expected to reduce them.

The health service was faced with a total of £400m worth of claims between 2005 and 2019, according to Freedom of Information requests submitted by researchers at Queen Mary University of London.

In particular, payouts for cases in which patients allege they were not properly informed about the risks of undergoing operations have soared – more than doubling from £25m in 2011 to £62m in 2019.

The increase comes despite a Supreme Court judgement in 2015 which was predicted to reduce the number of claims, by changing the legal test for determining what constitutes sufficient disclosure before consent is given to treatment.

Nadine Montgomery, who is five feet tall and suffers from diabetes, gave birth vaginally in 1999. Her baby developed cerebral palsy as a result of complications during delivery which can affect small mothers with diabetes giving birth to large babies.

Mrs Montgomery sued for negligence, arguing that, if she had known of the increased risk, she would have requested a caesarean section.

The landmark judgement shifted legal weight onto what a reasonable patient would expect to know, rather than what a reasonable doctor would warn the patient about.

But instead, the ruling appears to have had “serious, unintended consequences for the NHS”, according to Professor David Wald, who led the research at the university.

“The Supreme Court believed their ruling would reduce litigation but the opposite has happened,” he said.

 “Claims involving failure to inform are normally invisible in the overall numbers of negligence claims, but the rise we’ve identified is striking and shows no sign of stopping.

“By blurring the requirements for what doctors should tell patients and changing how negligence is determined, it has made it harder for hospitals to defend allegations of failing to properly inform patients before consent.

“The Montgomery ruling now makes these cases much easier to win, and the NHS is paying the bill.”

Professor Wald said effective communication between doctors and patients before procedures is essential, as determining “what constitutes a material risk to a patient” is extremely difficult and can vary.

He said problems can sometimes arise when patients or doctors don’t speak English fluently, and when patients feel under pressure to provide consent.

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