The campaign

 

Every year medical compensation levels are rising.

Medical claims inflation is running at 8% a year, meaning the size of claims is doubling every nine years.

This is not a reflection of clinical care standards. It is the result mainly of economic pressure and an outdated legal system meaning compensation must be calculated on the basis of private rather than NHS care.

A change to the way compensation amounts are calculated has driven up costs dramatically. This means the NHS will pay out larger amounts, making £37 million the highest single award to date. Estimates published in 2021 put the total cost of outstanding NHS compensation claims at nearly £83 billion.

NHS money which could go straight to front line patient care will have to fund compensation awards instead.

This is why the Medical Defence Union, the UK's leading medical defence organisation, is campaigning for legal reforms.

Patients must be compensated, but in a fairer, more affordable way.

Join our campaign for fairer compensation.

Fairer for society. Fairer for the NHS. Fairer for taxpayers.

What needs to be done?

  1. Reform of how compensation awards are calculated

    One reason care costs are so expensive is because a 1948 law still applies - S2(4)of the Law Reform (Personal Injuries) Act 1948. This means that personal injury defendants must disregard NHS care when paying compensation. Public bodies like NHS Resolution have to fund private care, so billions of pounds from NHS funds goes to the independent sector.

    We believe this is outdated and should be repealed. This would allow organisations like the MDU and other personal injury defendants such as employers, insurers and public bodies to be able to buy NHS and local authority care packages, boosting NHS funds for the benefit of all patients in the process - including the great majority of patients who require long-term care and treatment for severe injury that is not a result of negligence.

  2. Cap on earnings costs

    Those being compensated should receive no more than three times the national average salary for loss of future earnings per year. This would be a significant improvement on the current system, which does not award compensation in an equitable way as it differentiates between high and low earners.

  3. Defined health and social care packages

    An independent body should define the NHS health and social care package to provide an appropriate standard of care for all patients. This would be regardless of the cause of the patient's care needs. Compensating bodies such as the MDU should be required to fund a care package to provide the standard of care defined.

MDU claims examples

  1. Spinal surgery - damage to spine leaving teenager tetraplegic

    - Claim for care costs, accommodation
    - £9.2m damages plus legal costs

  2. Plastic surgery - facelift - damage to facial muscle

    - Claim for loss of income
    - £6.2m damages plus £3m legal costs

  3. General practice - missed diagnosis of a subarachnoid haemorrhage

    - £8.5 million in compensation and legal costs

How damages are calculated

In the UK, damages are intended to be compensatory, not punitive, and should cover what is necessary to put the claimant (patient) in the position they would have been in if the negligence had not occurred.

There are two major elements to damages awards.

  1. General damages are awarded for pain, suffering and loss of amenity arising from the injury.
  2. The claimant (injured patient) is also entitled to an award of damages in respect of the financial consequences of the injury or illness which can include the past and future cost of care, loss of earnings, loss of pension, the cost of special equipment and adaptations required in the home.

In cases where a patient has suffered a serious injury as a result of negligence, such as a child with brain damage, most of the award is intended to provide funds for care for the patient's projected life span.

In addition, the defendant has to pay the costs of litigation, including costs of legal advisers and medical experts' fees for both sides.