Prescribing compensation

Proper compensation and representation must lie at the heart of the chief medical officer's proposals to improve medical negligence awards

The chief medical officer's long-awaited report on clinical negligence litigation reform was published last week, but further consultation will take place before any of the changes are implement-ed (see [2003] Gazette, 3 July, 1).

There are 19 recommendations, with the overall stated aim being to improve the compensation system for patients injured as a result of medical error, and that the NHS learns from each mistake to avoid repetition.

The measures must be seen in context - the review came about because of the escalating cost of litigation against the NHS and the furore over the National Audit Office figures released in May 2001.

Key changes proposed are:

- An NHS redress scheme - a process for settling claims worth up to 30,000 involving an investigation.

Explanation, healthcare and compensation would also be available in serious children's cases involving neurological brain injury and severe disability.

Patients do not have to follow this route, but they will be encouraged to do so.

It is unclear whether representation will be paid for, and if so, by whom.

- Mediation - to be encouraged and possibly enforced in any non-redress scheme cases before litigation.

- Legal Services Commission costs - stricter criteria and limits on funding.

- Training for specialist judges.

- Periodic payments - an end to large lump sum awards.

After the wait and the hype, will these measures benefit patients, doctors, the government, and lawyers?

Much in the proposals is positive, and there has been a serious attempt to deal with what victims of medical accidents have so often been said to want - an explanation, an apology and a reassurance that what went wrong will not happen again.

However, it seems as though victims of medical accidents could receive less compensation than those injured as a consequence of, say, a road traffic accident, and that in reality claimants' rights to representation could be curtailed or abolished entirely.

Claimant clinical negligence lawyers need to continue to campaign for fairness and justice for clients.

This means representation, proper compensation and a full care package paid for by the defendants if an NHS package is not available or realistic given the scant resources for severely handicapped children in the community.

The most significant area in need of change - vital to lawyers' survival in the future - is the way solicitors and barristers work.

There is no place for hard-nosed expensive litigation.

Lawyers must adapt to become problem-solvers, not the problem itself by incurring huge costs and delays.

Lawyers are fully capable of settling cases without litigation and we often obtain an apology and an explanation.

We are also tough negotiators who understand the medico-legal issues.

We can and do arrange and manage complex roundtable settlement meetings.

Arguably, modern, forward-thinking law firms are ideally placed to campaign for victims of medical accidents to ensure they are fairly represented and compensated before reform is introduced.

Those firms will be key to successful implementation of the reforms.

We are used to working in partnership with other professionals to ensure cases are dealt with appropriately.

Over the past few years, this area of law has been at the heart of huge debate and interest by ministers anxious at the rise in litigation, by the media and the public's seemingly insatiable appetite for stories of medical error.

Yet as a group we have not managed to get the simple message across, namely that we can do this better and more cost-effectively than any number of new bureaucracies or organisations, and time for the message is running out.

We have already embraced many changes in procedure and practice, some of which have still to be evaluated.

I am sure many practitioners welcome the opportunity to change further in the interests of clients.

We must be seen to be doing so.

Rosamund Rhodes-Kemp is the head of clinical negligence at London-based Russell Jones & Walker