Catching my eye before Christmas was the £4.5m employment tribunal award against Mid Yorkshire Hospitals Trust in the case ofconsultant Eva Michalak.
When I mused aloud that it seemed an awful lot of money, even for what sounds like a nasty campaign against her, I was severely taken to task by online readers elsewhere in the blogosphere.
I remembered the case again last week when the Times dusted off an old chestnut, the rising cost of lawsuits against the NHS. Payments have almost quadrupled to nearly £1bn a year in the past decade, largely thanks to no-win/no-fee ambulance chasing lawyers and claims management firms in all walks of life. Health secretary Andrew Lansley has had to bail out the NHS Litigation Authority, which was running out of wonga as this financial year ends.
When the Guardian reported that the Litigation Authority could be privatised under the ongoing review of clinical negligence costs, the DH insisted “there are no plans” to change its structure, a well-worn formula which falls short of a denial. “Mutualisation”, not the same thing, has been considered. All the same, I’d watch out.
Litigation’s a tough one and has been getting worse in the 30 sue-minded years since the old NHS had no more than 30 serious cases a year, not the 8,655 it gets now. Carers for life-changing injury expect to be paid. The Litigation Authority is largely funded by the legal insurance taken out by trusts whose premiums have been rising too. Claimants who will either get their fees paid by the NHS (if they win), or by no-fee lawyers or legal aid if they lose, have little incentive to settle.
Hence moves in Ken Clarke’s current bill to remove legal aid from most medical negligence cases. That change has prompted charges of injustice, that ministers are pushing the pendulum back too far. NHS managers waste money by not settling early and out of court, say lawyers whose adverts we see on daytime TV.
Delay may be a factor in Polish-born Dr Michalak’s case. It arose after the consultant physician was first suspended, then dismissed, from Pontefract General Infirmary in 2008. The case was resolved (with a finding of racial and sexual discrimination, as well as of unfair dismissal) only in December. Fifteen ex-colleagues were named as part of a “Get Eva” campaign in what started as a £9m claim.
Trouble arose on Dr Michalak’s return to work from pregnancy leave in 2003, after her request for additional payments of the kind made to colleagues who covered for her. It all seems pretty poisonous. Dr Michalak was paid just £7,180 for unfair dismissal, but £30,000 for injury to her feelings, £56,000 for psychiatric damage (she has suffered what experts agreed was post-traumatic stress disorder and been unable to work), £168,234 for past lost earnings, £991,802 for future lost earnings (she is now 53), £666,260 for loss of pension, etc.
Very soon they were talking proper money, all calculated in great detail, including the carers’ payments (at £6.60 an hour) to Dr Michalak’s husband. He is a medical research scientist and (it turned out) talented amateur lawyer, who gave up his job to look after his sick wife and prepare their case. “We have to pay tax on it”, he reminded reporters. So do we all.
I can see why my political friends don’t want to talk about the case, but reading the tribunal’s judgement – it’s online – left a bad taste in my mouth. Injured soldiers do not do as well. The trust, already under Nicholson efficiency pressures, tells me it is “rightly taking full responsibility for mistakes of the past [including] the full compensation award. We are working through what this means for our financial planning.” Indeed.