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UK
tells its ophthalmologists to apologise for errors
UK ophthalmologists will become the first in Europe to be legally
required to say "sorry" for their mistakes.
Under a new plan, Britain’s National Health Service will impose
a legal "duty of candour" on its physicians – including
ophthalmologists and ophthalmology residents – whenever they
learn they may have committed negligence.
The plan, unveiled in a new report called "Making Amends,"
will also establish a comprehensive system for investigating medical
mistakes, caring for patients injured by such mistakes, and monitoring
clinical practice to eliminate such mistakes.
"The individual who has suffered harm as a result of the health
care they have received must get an apology, a clear explanation
of what went wrong, treatment and care, and, where appropriate,
financial compensation," the chief medical officer for England
and Wales, Liam Donaldson MD, announced in the report. "The
NHS must also ensure that such bad experiences of individuals are
learned from so that future NHS patients throughout the country
benefit from reduced risks and safer care. The primary aim must
be to reduce the number of medical errors that occur."
If adopted, the proposal would take effect only in England, where
50 million of the UK’s 60 million inhabitants live. Ultimately,
however, Wales, Scotland and Northern Ireland would be expected
to follow suit and adopt a similar proposal within their own jurisdictions.
Nicholas Astbury, FRCOphth, president of the Royal College of Ophthalmologists,
welcomed the report.
"I’m quite impressed with it," said Mr. Astbury,
who is a consultant ophthalmologist at the Norfolk and Norwich University
Hospital. "Dr. Donaldson is not just trying to change the way
patients are compensated but also to create a system from which
we learn from our mistakes and try to reduce the risks that lead
to such mistakes."
Under the new system, a panel of experts will review each malpractice
claim. If the panel determines that there was negligence, the patient
will receive a full explanation of what happened – including
an apology. The patient will also receive any corrective medical
care or rehabilitation for free. In addition, such patients will
receive up to £30,000 pounds – about €43,500 –
for the pain and suffering they endure because of the negligence
of an ophthalmologist or any other NHS employee.
The system will also include no-fault compensation scheme for infants
injured at birth. In addition to free medical treatment for life,
such children will receive cash payments of up to £100,000
a year for care, and a lump sum of £50,000 to adapt their
family home and for any equipment. Such children will also receive
up to £50,000 for their pain and suffering.
In addition to helping those who are injured, the new system will
track all adverse events and complaints and recommend improvements
to prevent further events and answer such complaints. The system
will also require every hospital authority to appoint a member of
its governing board to oversee risk management. In addition, the
system will require all NHS staff members – including physicians
– to undergo training about how to deal with complaints and
to communicate better with patients and their families. To facilitate
more openness about adverse events, the report recommends that reports
of adverse incidents be protected from disclosure in the courts
– as is the case in Canada, Australia, and many states in
the United States.
The new plan represents one of the biggest policy shifts in British
medical history. For more than a century, British physicians and
hospital have fought all medical negligence claims as adversaries
of their patients. Such an adversarial system not only ends the
patient-physician relationship but also delays the compensation
process. In the UK, malpractice cases can take four to five years
to reach a courtroom. With the introduction of the new compensation
system, patients could receive compensation for their injuries within
a few months of making a claim. Under the British proposal, patients
who accept a compensation package lose their right to sue in the
courts.
Although no specific statistics are available for UK ophthalmology,
statistics for all malpractice suits indicate that the risk of being
sued and the costs of malpractice lawsuits are rising to American
proportions.
In the mid-1970s, patients filed an average of 700 negligence claims
per year against British physicians, dentists, and pharmacists.
Last year, patients filed about 11,000 such claims.
The payout for malpractice claims has also risen dramatically. The
average payment in a medical negligence action is about £57,000,
or about €82,000. In all, the NHS paid out £446 million
or almost €650 million in compensation and legal costs for
medical negligence cases last year.
By
contrast, the average payout for medical negligence cases in the
mid-1970s was about £1,500. In 1975, insurers for physicians,
dentists, pharmacists, and hospitals paid out a total of about £1
million for clinical malpractice.
Over the same period of time, the cost of malpractice insurance
for British ophthalmologists rose dramatically. In 1975, ophthalmologists
and every other British physician paid less than £100 a year
for coverage. Today, ophthalmologists who perform refractive surgery
pay as much £22,000, or about €31,500, for coverage.
Even those ophthalmologists who don’t perform refractive surgery
pay a huge amount for coverage – £9,155, or about €13,000
– per year.
In addition to reducing the level of payouts to patients, the new
system hopes to reduce payments to lawyers. A recent study looked
at negligence cases where patients received £35,000 or less
in compensation. In more than 50% of those cases, the lawyers received
more than £35,000 in legal costs.
Five European nations compensate patients outside
the courts
If
it reforms its medical malpractice system, Britain will join
five other European countries that have taken such cases out
of the courts.
Only last year, France became the latest country to reform
its medical negligence system when it announced it would introduce
an out-of-court system for medical accidents. In doing so,
France joins Sweden, Finland, Denmark, and Norway.
Under the French scheme, four Regional Commissions of Conciliation
and Compensation will investigate medical accidents, problems
arising from medical interventions, and infections contracted
during treatment. A magistrate and panel of experts will review
each case and decide whether a patient may be due compensation.
To receive compensation:
•
The patient must incur harm as a direct result of medical
treatment;
• The harm must be significant enough to have a detrimental
effect on the health of the patient;
• The patient must show a 25% reduction in physical
or mental capacity as a result of the harm.
Although
patients can still sue their ophthalmologist or other physician
in the French courts, they are barred from taking a case if
they accept a settlement from the commission.
In addition to a national compensation fund, the commission
can draw on the physician's own insurance if the investigation
reveals that the physician’s treatment was negligent.
In addition, to France, Sweden, Finland, Denmark and Norway
operate no-fault systems.
In general, the systems in the Nordic countries are based
on the principle of compensating patients for injuries they
suffer from medical care that involved avoidable risk and
complications.
The systems also compensate patients for injury caused by
defective equipment, the misuse of equipment, incorrect diagnoses,
and infection contracted during treatment.
Compensation, however, is not paid for any mistakes in obtaining
informed consent, injuries arising from unavoidable complications
or from any complications incurred as a result of treating
life-threatening diseases.
Patients must also show that there injuries were serious.
In Sweden, for example, patients must show they were incapacitated
for 30 days, hospitalised for 10 days and incurred a permanent
disability to qualify for the scheme. In Finland, however,
patients face a lower threshold. They need not prove any permanent
disability; rather, they need only have spent more than two
weeks in hospital because of the medical accident and show
that their injury is worth more than €168.
The average cost of compensation claims in the Nordic countries
is a fraction of that of the UK. For instance, the Swedish
system pays out the equivalent of €8,700 per successful
compensation claim on average. Although the Finnish system
pays out about three times the Swedish system average, the
British system pays out a whopping £57,000 – about
€82,000 – per successful claim. Of course, European
awards and settlements pale in comparison to those in the
United States. There, the average payout for a successful
medical negligence claim is about $1 million – about
€880,000.
Unless Britain can reduce the size of its payouts, it could
be facing a huge debt for the planned non-court compensation
system. The experience of the Nordic countries is that because
patients find a non-court injury system faster, easier, and
cheaper to use than the courts, patients are more likely to
bring a claim.
For instance, Sweden, which has population of about 9 million,
has about 7,000 medical injury claims per year. Of those,
about 50% result in a compensation payout. Finland, which
has a population of about 5 million, also has about 7,000
claims per year. In Finland, only about 40% of claims receive
compensation. England, which has a population of about 50
million, has about 11,000 medical negligence claims per year.
Of those claims, only about 40% result in compensation for
the patient.
Statistics also show that a court-based medical negligence
system can prove daunting for the patient. For example, of
the negligence files opened by the British National Health
Service since 1995, 28% of cases have been abandoned by patients.
Only 3% of cases reached the courts, with patients losing
one-third of those cases. In most of those cases, the losing
patient was compelled to pay the legal costs incurred by the
NHS – often in excess of £10,000. Some 47% of
cases were settled out of court. The remaining 22% of cases
are still pending.
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Patients
want an apology and explanation
According to
a leading opinion poll, British victims of medical negligence and
their relatives want an apology and explanation above all else.
The poll, taken
for the just-released "Making Amends" report on medical
negligence, showed that when asked what they wanted most of all
after a medical accident:
• 34% of victims said they wanted an apology and explanation;
• 23% of victims said they wanted an enquiry into the causes
of the error;
• 17% of victims said they wanted help in coping with the
consequences of the accident;
• 11 % of victims said they wanted financial compensation;
• 6 % of victims said they wanted disciplinary action against
the physicians who were
responsible for the accidents.
UK proposal open for discussion
Comment on the reforms proposed in the Making Amends report
is open until mid-October. To view a copy of the report, go to http://www.doh.gov.uk/makingamends/pdf/cmomakingamends.pdf
If you have any suggestions for future Regulatory Matters columns,
please contact Paul McGinn at +353 1 628 9747 or email paulrmcginn@eircom.net.
If you would like to read previous "Regulatory Matters"
columns, check
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