Your hospital is about to appoint a consultant gynaecologist. At the interviews, there is one candidate who shines - he is enthusiastic, personable and bright. He comes with great references and has done some academic work to boot. He looks like a sure thing, until the director of human resources tells the panel that the routine background check with the NHS Litigation Authority has thrown up some problems.
In the past seven years, this doctor has been the subject of nine claims - seven of which have been settled with payments ranging from£7,500 to£123,000. Most of the claims revolve around postoperative complications of major gynaecological surgery, with the suggestion that his surgical technique is sometimes slapdash and overconfident. Several claimants also alleged he became brusque and aggressive when they raised their concerns with him initially. The panel thinks again about whether to appoint him.
Unfortunately, this would not happen in real life.
It is a pipedream, because although the NHS Litigation Authority has all that information (which it has collected from the trusts it serves) it would never agree to release the information back to the trusts which provided it in the first place.
Indeed, the authority has deliberately hobbled its computer databases of litigation cases by not recording any clinician identifiers at all, although it has all this information and more in its paper records. When it comes to clinical negligence and its consequences, the NHS is working blindfold - and it does not need to be.
The NHS Litigation Authority was set up in 1995, to provide a sorely needed national focus for managing clinical negligence litigation, at a time when the costs of such litigation were spiralling alarmingly.
1It runs the clinical negligence scheme for trusts (CNST) to which virtually all trusts belong, and which provides a risk-pooling arrangement to cover the costs of clinical negligence claims above a certain size. It also manages the existing liabilities scheme (ELS), which covers the costs of claims arising before 1995 when CNST came into operation.
In the first five years of its existence, there is much to praise about its work. For example, it has done a great deal to establish risk management in the NHS by offering discounts on CNST fees to trusts with good risk-management arrangements, and surveying trusts to check their compliance with CNST risk-management standards. There is no doubt that the Litigation Authority has made trusts take risk management seriously.
2It has also done much to speed up and make more professional the handling of claims for clinical negligence, and to improve the quality of legal services provided to trusts in this area.
3A few years ago, there were around 80 firms of solicitors handling clinical negligence litigation for trusts - there are now fewer than 10 firms dealing with virtually all the work. The authority forced the pace of specialisation and consolidation, and drove the dabblers out of the business.
Over the past five years, the authority has built up an impressive computerised database of all clinical negligence claims against trusts which are members of CNST arising from 1995 onwards. In addition, because it manages ELS, it has a further database of many, though not all, claims arising before 1995.
These two databases contain extensive information about each claim for clinical negligence which is updated as the claim makes its way from initiation to completion, including details of the clinical circumstances, the injury caused to the patient, the progress of the claim, and the likely or actual settlement costs. Each record in the database links to an extensive paper file, held by the authority or one of its firms of solicitors, which can be several inches thick in complex or longstanding cases.
As was noted above, the NHS Litigation Authority deliberately does not put any clinician identifiers on to either of its two databases. When the organisation was set up, there was considerable concern, particularly in the medical profession, about how it might gather and use information about individual clinicians. The authority decided not to collect any clinician identifiers in order to allay professional fears and avoid an early confrontation with organisations such as the British Medical Association.
In retrospect, this was probably a mistake, but in any case times and attitudes have changed. After the Bristol case, the Ledward affair, the Shipman trial, and other high-profile examples of clinical negligence or worse, few people would argue that the NHS Litigation Authority should be censoring its data set in this way.
Even without clinician identifiers, the authority's databases could be very valuable to the NHS. But it would be a straightforward if tedious exercise to go through the paper records retrospectively and add clinician information (including names) to the computer.
The authority's databases of clinical negligence claims are a hugely important but under-used resource - for research, for quality improvement, for claims management and for medical management. Researchers could use the information they contain to study trends in litigation and to answer important questions about the impact of changes in how claims are managed.
Risk managers and quality improvement groups could use the data to show what the most common causes of major claims in each specialty are, and to help to understand and prevent the serious adverse incidents that often lead to claims. Claims managers could use the data to compare cases they are handling with other similar cases in other trusts. Medical directors could use the databases to check the litigation records of applicants for senior medical posts - remembering of course that simple rates or numbers of cases could be misleading, and the detail needs to be studied carefully. They could also use them to compare the litigation rates of service areas and specialties in their own trust with those elsewhere. In each of these areas, the authority's database could be used as a force for good, to improve the quality of care for patients. It is little short of a scandal that for five years, it has not been used to do any of these things.
The NHS Litigation Authority's databases have not been used by anyone apart from the authority itself, because it does not allow anyone else to access 'its' data and does not seem to see the kinds of uses described above as a priority. It is so focused on managing clinical negligence cases that it is neglecting its wider mission to work with and serve the NHS. The authority has been criticised for this before. For example, a major Department of Health-funded pilot study of the use of mediation as an alternative to litigation for resolving clinical negligence cases only managed to get 12 cases of clinical negligence referred to mediation, in part because the authority was so unhelpful.
4The DoH's report on how the NHS could learn from adverse events also highlighted the authority's apparent lack of interest in the wider issues of quality improvement and patient safety.
5The problem seems to be that the authority has interpreted its remit very narrowly, and no-one has been willing or able to get it to change its mind. Like all special health authorities, the NHS Litigation Authority is formally accountable to the DoH and the health secretary. In practice, it has been allowed considerable freedom of action, perhaps because its legal and insurance specialists understand clinical negligence rather better than those in the DoH to whom they are responsible.
But the authority should really be held to account by those it serves - trusts and HAs, who meet its bills through their contributions to CNST and ELS, and who provide all the data it holds. While the litigation authority does have an advisory committee made up of people from the NHS whom it selects, that committee has no powers and very little apparent influence.
It is time to make the NHS Litigation Authority more accountable to the wider NHS, and to ensure that the information it holds is used to serve the needs of the NHS. So much has changed since it was set up - with the arrival of clinical governance, the Commission for Health Improvement, and the Clinical Assessment Authority and the reform of the General Medical Council. The authority now looks distinctly dated in its attitudes and procedures, and sorely in need of fresh thinking and new leadership.
1 Towse A, Danzon P. Medical Negligence and The NHS: an economic analysis. Health Economics 1999; 8: 93-101.
2 Walshe K, Dineen M. Clinical Risk Management: making a difference? Birmingham: NHS Confederation, 1998.
3 Dineen M, Walshe K. Clinical Negligence Litigation In The NHS. Birmingham: health services management centre, Birmingham University, 1999.
4 Mulcahy L, Selwood M, Netten A. Mediating Medical Negligence Claims: an option for the future? London: The Stationery Office, 1999.
5Department of Health. An Organisation With a Memory: report of an expert group on learning from adverse events in the NHS. London: Department of Health, 2000.