The Empire Strikes Back?

Yesterday’s news about health service spending on insurance against negligence claims raised a number of issues, with the media focus firmly on what could be seen as needlessly wasting money in a dire financial climate. Personally, much more important were questions of the wider implications in general of such claims.

Firstly, I should say that I believe it only fair that people who are innocent victims of substandard care have a means available through which compensation can be obtained. This brings a two-fold benefit- as well as helping the victim to deal with the consequences of their mistreatment, the standards of care are inevitably driven upwards by the threat of further such payouts. The fact that financial motivation is practically the only kind that gets much response from public and private institutions is a sad matter, but one for another day.

In comparison with cases of legal action against, for example, tobacco companies or car manufacturers for health-damaging effects of their products or the way they are portrayed to the public, negligence cases against the health service involve a subtly different dynamic. The legal and ethical landscape is necessarily different where the patient-NHS relationship is involved, and leaves open the question of why should the patient be the only potential plaintiff in action between the two. Unlike the tobacco or car firm, the NHS has little choice over who its ‘customers’ are, having moral and constitutional obligations to treat anyone who turns up as best it can.

A significant proportion of those turning up expecting treatment are doing so with problems that are in some way self-inflicted. The NHS cannot use this as a basis to not treat somebody, so the finite resources available for providing care to the public in general are put under avoidable strain. Should the NHS, effectively on behalf of the population at large, not be able to seek compensation for the cost of treating these cases? The impact of having to treat such cases is an impairment of the health service’s ability to function as it would like to and to fulfil its role, the same basis for awarding compensation to individual given negligent medical care. The ability to reclaim the cost of care in these cases would leave the NHS better able to provide an even higher standard of care to the nation, whilst also encouraging greater thought on behalf of the public in regard to how well we look after our own health.

Clearly, there would be issues subject to lengthy wrangling over what exactly constitutes a ‘self-inflicted’ reason for requiring medical care, but if we assume for now that such a definition could be agreed, does the institution have any less right to compensation for harm doe than the individual?

Consider for a moment an example- a reckless driver (not reckless enough to be without the required insurance) has a collision with a parked car, injuring himself in the process. Is he to blame for the damage to the other car? As long as that car was parked legally and otherwise acceptably, then clearly he is, and his insurance company would struggle to get out of paying for the damage. Is he to blame for his own whiplash and fractured rib? If he is accountable for the damage to the other car, then equally he is to blame for this damage. The cost of treating him would fall on the NHS, should they then not be able to recover that cost, just as the owner of the parked car is able to?

The current news story centres around the most common reason for admission to hospital in the UK– giving birth. Approximately 20% of the total budget for maternity care is apparently spent on insurance payments to cover the NHS against potential negligence claims, but what about the other side of possible pregnancy/birth problems? If someone decides to ignore medical advice and regularly drinks alcohol during pregnancy, there is a risk of causing problems such as Foetal Alcohol Syndrome (FAS), which would then entail lifelong medical and social support above that provided to the average person at enormous cost to health and social services. If we say it is fair for the health service to be held responsible for its actions when mother and/or baby are harmed by poor performance from a person with a duty of care, surely it is also fair to apply the same principle to the mother herself, with her duty of care towards her child.

For the vast majority of people, myself included, the idea of a mother being sued for the cost of looking after her child (running into hundreds of thousands of pounds in the case of FAS) just doesn’t sit well, doesn’t seem quite fair. How fair though is legal action by a mother against a doctor who fails to recognise signs of a disabling disease on an ultrasound scan and denies her the option of the termination she would have had, had she known about the condition? Everybody makes mistakes and there is almost zero chance that a mistake made by a doctor or nurse is anything other than innocent human error.

If we continue to embrace the culture of attaching blame and financial redress to the negative impact of mistakes that are made, enjoying the victories for the individual against the faceless institutions, we have to accept scope is then left for the institution to bite back. Abhorrent though the idea of individuals compensating the faceless institution may be, the ever present financial imperative within those institutions may mean such cases are not too long in coming.


Leave a Reply

Fill in your details below or click an icon to log in: Logo

You are commenting using your account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s