The campaign

Every year medical compensation levels are rising.

Medical claims inflation is running at 10% a year, meaning the size of claims is doubling every seven 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 It is the result mainly of economic pressure and an outdated legal system meaning compensation must be calculated on the basis of private rather than NHS care.

This toxic climate is causing worry about indemnity becoming unaffordable. Some doctors could be deterred from certain types of work, or worse, from practice.

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

In the last three years, the MDU has paid out over £100 million for high value claims - those over £1 million.

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

Join our campaign for fairer compensation.

Better for you. Better for patients.

When the MDU paid the first million pound compensation award in 1988, it caused a sharp intake of breath among doctors. Today, multi-million pound damages payments for clinical negligence claims are common.

We should not stand by and watch compensation awards running unchecked to many millions of pounds. Reform of personal injury law needs to happen.

The MDU's highest compensation payment to date is £9.2m to compensate a patient rendered tetraplegic following spinal surgery. Another example is £6.2m in damages, with £3m in legal costs, to a patient for facial nerve damage after plastic surgery.

In the first claim the damages were so high because they had to fund future care and accommodation for a young person with a long life expectancy. In the second, compensation for loss of earnings made up most of the award.

Damages doubling

No-one would deny that patients harmed as a result of medical negligence should be properly and fairly compensated. But this needs to be balanced against society's ability to pay. Large damages payments are no longer unusual and claims inflation is rising at an alarming rate - 10% for the past few years, far higher than wage, house or retail price inflation.

The MDU sees damages doubling every seven years. A claim that costs £9 million to settle today could cost over £18 million by 2021. The dramatic rise in clinical negligence awards affects all taxpayers.

What can be done?

The MDU advocates a package of legal reforms to provide a fairer and more sustainable system for all:

  1. Repeal of S2(4)of the Law Reform (Personal Injuries) Act 1948

    One reason care costs are so expensive is because a 1948 law still applies. Personal injury defendants must disregard NHS care when paying compensation. This means public bodies like the NHSLA have to fund private care so billions of pounds from NHS funds, goes to the independent sector.

    We believe S2(4) of this outdated law should be repealed. It 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. This would boost NHS funds for the benefit of all patients, including the great majority of patients who require long-term care and treatment for severe injury which is not a result of negligence.

  2. Defined health and social care packages

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

  3. Cap on earnings costs

    If people who are negligently harmed are high earners they can receive millions of pounds in compensation for loss of future earnings. It is possible to award financial compensation on a more equitable basis. For example, in many states in Australia the maximum amount a person can claim for loss of earnings is three times the national average salary. That is fairer and we suggest a similar system is adopted here.

It is very clear that the current compensation system cannot continue because society cannot afford to foot the bill for liabilities that are increasing in an uncontrolled way. There must be change.

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 not intended to be punitive but compensatory and should cover what is necessary to put the claimant (patient) in the position he/she would have been in had the negligence 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 such cases the annual cost of care often exceeds £100,000 in circumstances where the patient is expected to live for 50 years or more. This can result in substantial seven figure awards.

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

What needs to be done

Society cannot continue to fund spiralling compensation awards. The legal reforms the MDU suggests would address the problem. They could also provide an additional income stream of billions of pounds for NHS and local authority care at a time when both are under severe funding constraints.