Final Report > Chapter 26: The Safety of Care > Overcoming the barriers to openness > Replacement of clinical negligence litigation

Replacement of clinical negligence litigation

35 The system of clinical negligence litigation is now ripe for review. It is over 20 years since it was last considered as part of the review carried out by a Royal commission under Lord Pearson. [31] Much has changed in the NHS and in the practice of medicine since then. The system is now out of alignment with other policy initiatives on quality and safety: in fact it serves to undermine those policies and inhibits improvements in the safety of the care received by patients. Ultimately, we take the view that it will not be possible to achieve an environment of full, open reporting within the NHS when, outside it, there exists a litigation system the incentives of which press in the opposite direction. We believe that the way forward lies in the abolition of clinical negligence litigation, taking clinical error out of the courts and the tort system. It should be replaced by effective systems for identifying, analysing, learning from and preventing errors along with all other sentinel events. There must also be a new approach to compensating those patients harmed through such events. The abolition of recourse to clinical negligence litigation would be a major step in changing the climate and the incentive for reporting when things go wrong and, we believe, encourage the openness essential for improving safety. Although our view on what needs to happen is clear, we recognise that such a radical change is likely to have wide implications, not least in terms of any new system of compensation. We recognise, therefore, that the way forward lies in a review by an expert group of the entire system of clinical negligence litigation, with clear terms of reference to consider alternatives to the current arrangements. The review must also address needs arising from harm, both financial and emotional, and how they should be compensated.

Footnotes

[31] Lord Pearson. `The Royal Commission on Civil Liability and Compensation for Personal Injury Reports'. HMSO, 1978