Recently the government indicated that medical negligence claims are expected to cost the taxpayer £15.7 billion. You can read more about this in our recent blog - setting the record straight on the spiralling 15bn medical negligence bill.

The £15.7billion was said to include "an estimate of the cost of mistakes that have not yet been claimed for". The annual provision for clinical negligence claims in the Whole of Government Accounts Report 2009/10 was £2.1bn but the actual amount paid by the NHS in 2009/10 was £787m.

It is interesting to consider why claims have not been made in situations where the government anticipates them. Sometimes this will be because claims on behalf of children do not need to be brought until the child reaches adulthood so if a child has been injured but no claim has yet been made it does not mean that a claim will not be made in future.

Other explanations are, however, more worrying. Despite what you may read in the press about 'compensation culture' people are still reticent in bringing claims, particularly against the NHS. Many of those who make a claim only do it reluctantly. Perhaps the constant publicity about the compensation culture is putting people off: they don't want to be seen to be part of such a demonised section of society. That is sad if it means that there are families undergoing significant hardship as a result of injuries caused by medical negligence but are put off from claiming.

An additional explanation, however, is that many of the people who have been injured as a result of poor medical treatment may not know about it. They know that they were ill and that they required some sort of medical treatment but they may well not know that an error was made or that their injury was neither the result of the original illness, nor unavoidable. That is because nobody tells them. Those who suffer as a result and are unaware of the possibility of claiming compensation are disproportionately likely to be less well informed and more vulnerable members of society.

Lobby groups such as Action against Medical Accidents (AvMA) have called for a statutory duty of candour to remedy this situation arguing "The current situation means health organisations can effectively cover an incident up from a patient or family member". A duty of candour would be a legal obligation upon the NHS to inform patients when mistakes have been made.

However, following a consultation paper, peers last week rejected inserting a statutory duty of candour into the Health and Social Care Bill by 234 votes to 194. After the decision Chief Executive of AvMA, Peter Walsh, stated "this is a bad day for anyone who values patient safety and patients' rights." Health Minister Earl Howe explained that the government "doesn't feel more regulation is the right way to go" but continued to explain that a contractual duty of candour may still be on the cards despite concerns from lobby groups that a contractual duty would be woefully inadequate.

With the NHS budgeting for increasing numbers of medical negligence claims and a statutory duty of openness in the NHS being rejected, Baroness Masham expressed the concerns of many in asking: "Patients and their supporters always have to fight for everything. Why?"

The obvious concern for the NHS is that a requirement to admit mistakes to patients will potentially make thousands of patients aware of the possibility of making a claim for compensation. If further claims are brought as a result it would increase costs to the NHS. Nevertheless, even the Department of Health has confirmed "if patients do not receive the treatment they should, and mistakes are made, it is right that they should be entitled to compensation". That promise is toothless without an obligation on hospitals to inform patients when a mistake has been made.

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