Medical malpractice is a problem in the health care sector not only in developing countries but also in progressive countries like Unites States, Australia, and United Kingdom. These progressive countries though have the advanced methodologies of management and prevention of the cases of medical malpractice. It is alleged that the biggest number of cases of preventable deaths is due to failures in the healthcare provision of medical systems.
The approaches and initiatives towards the solution and prevention of medical malpractice cases vary by country(1). Medical malpractice occurs when harm is unintentionally or intentionally inflicted to a patient in the process of the clinical decision or procedure. This is the damage due to medical services offered by any health service provider that resulted into grave consequences to the patient and their family.
The healthcare patient that was inflicted with injury or harm by a medical service provider deserves to receive a thorough explanation for the wrong procedure that was instituted, an apology from the healthcare service provider that conducted the diagnostic or treatment procedure, proper treatment and medical care to alleviate the condition that is the consequence of the incorrect diagnosis or treatment, and financial payment if necessary.
The patient that suffered from the injury or harm due to any incorrect treatment or diagnosis also needs to given the appropriate emotional therapy if needed to lessen if not erase the trauma that the patient undergone due to the incorrect or inadequate medical service offered(2). A patient that suffered from harm that is a result of medical negligence can attain financial redress through filing a case in the legal system.
This patient needs to be able to present evidence(s) that proves that the healthcare professional or healthcare service provider delivered a medical service in the form of diagnostic and treatment procedures that lead to the injury of the patient. In the past, the legal systems proceedings is thus the only method in which a patient that claims to have suffered injury due to medical negligence to attain a financial redress. This method of claiming financial redress though has various faults that serve as burdens to the patient claimant of the medical malpractice.
The processing of small value medical negligence claims in the legal system is a slow and complex methodology for redress as well as unfair to the claiming patient. This is also costly due to the high costs of legal fees for a small claim of medical malpractice. The legal proceedings for the claims of the medical injury often take a long time before it is resolved. The awarded compensation to the patients that have smaller value claims is usually lesser than the costs for the legal proceedings.
It is learned by the National Audit Office that the compensation receive by the client during the settlement of the claims is much lower than the costs of legal and administrative settlement of medical errors claims in cases that have claims below 45, 000 Euros. In the claims that are of greater value, the time consumed for the legal proceedings is long and the costs spent in these legal proceedings are enormous(2). In the current method for the litigation of medical negligence, the time consumed before the case can be resolve can reach up to 10 years.
Litigation of medical negligence claims thus takes many years before the compensation can be awarded. Whilst this is a problem in the litigation of medical negligence cases, another problem is the withdrawal of cases due to the costs of making the claims. In 2002 to 2003, there were about 7, 798 medical negligence claims but many claims did not reach the court(3). The incidence of medical malpractice in United Kingdom is raised in an alarming rate over these past few years. On a yearly basis, there are approximately 850,000 cases of malpractices in the United Kingdom healthcare sector.
The direct costs of these malpractices are estimated to be two billion Euros per year. Accidental injury in UK due to healthcare providers is said to be one for every ten patients. Ever since 1995 the cost of settling claims of medical negligence in UK multiplied seven times(1). The complication to adverse condition is approximately 10 percent of the hospital in-patient admissions. Approximately one third of the claims of the medical errors have enduring impact on the affected patient’s health(2).
Most of the medical errors encountered are: injection of wrong medication; sub-optimal treatments for disease condition like diabetes; complications from surgical operations done by healthcare service providers; and failure to receive healthcare service by patients that have disease conditions in need for apt treatments. The adverse impacts of medical errors to the patients surpass the effects of the physical damage that occurred. Depression; anxiety; trauma and fear of future treatment; and disturbance to work and family life are among the effects of these medical errors in the psychological and social aspects of the patient’s being(2).
In response to the growing number of medical malpractice complaints, the government of United Kingdom instituted various initiatives to decrease the number of patients that are injured or die due to improper administration and prescription of medicines; wrong therapeutic management of disease condition; and negligence done by health service providers(1). The method of claiming redress of medical negligence through the legal system proves to be inefficient in cases wherein the claim is of small value (lesser than 20, 000 Euros).
The establishment of the NHS Redress Act of 2006 aims to decrease if not eliminate the cases of medical malpractice in United Kingdom as well as formulate necessary procedures for remedy the cases of medical malpractice. The provision of necessary investigations, explanations, apologies, and financial retribution are also included in the objectives of the formulation of this bill by the National Health Service (NHS) of United Kingdom. The NHS Redress Act was granted Royal assent last November 8, 2006 after a rigorous debate in the Commons and the Lords.
The though was drafted and published in October 2005 with the primary purpose of establishment of an NHS Redress Scheme. The Scheme is an initiative to reform the organization of NHS into an open and fair culture for the claims of medical negligence. This initiative also guarantees that the agency shall learn lessons from the mistakes they have committed such as negligence in their provision of healthcare services(4). The NHS Chief Medical Officer’s report entitled ‘Making Amends’ published in 2001 was the origin of the Redress bill.
The report suggested reforms based on the following awful attributes of the current system for the claims of medical malpractice: slow and complex; high expenditures in legal fees, healthcare provider’s are diverted from their clinical care responsibilities, and negative public confidence to the NHS employed healthcare professionals leading to the low morale of the NHS staff; dissatisfaction of medical malpractice claimants on the explanations, apologies, and prevention of recurrence that is elicited by the healthcare providers of NHS; and defensive nature of the NHS to the claims that hinders the attainment of the agency’s goals.
The Redress bill aims to promote consistency and openness in the response of NHS to the negligence claims as well as provision of corrective actions for the damage that were inflicted to the claimants(5). The NHS Redress Act caters to the provision of a scheme for the resolution of medical malpractice claims that are belong 20, 000 Euros without having litigation from the UK courts.
The agreement of a medical negligence complainant to the Redress scheme prohibits him or her to file any legal actions after the proceedings of the under the scheme. The monetary compensation that will be received by the complainant of medical negligence in this scheme is equivalent to the monetary compensation that can be awarded if the complaint is processed through a legal system(6).
The redress scheme that is under the NHS Redress Act of 2006 pose an alternative to the legal proceedings in the legal system and promises to promote: eradication of the unnecessary costs and time consumed in litigation in the legal system; regular uniform response to the claims of medical negligence through generating unbiased reasons for the occurrence of medical malpractice, interpretation of the incorrect events that occurred in the diagnostic and treatment processes, formulation of strategies that will prevent the reoccurrence of the medical negligence, and prevention of trauma in patients during the occurrence of these medical inconsistencies; accentuate correction of the condition that is a result of the medical negligence through suitable medical treatments and financial compensation; offer faster and easier access to redress in the claimants of medical negligence; and grant patient claimants of medical negligence whom can not file their claims in the legal system’s courts an option(3).
Through the Redress Scheme the significant amount of money consumed in the litigation of medical malpractice cases in the UK courts is saved and can be diverted by the government for various other things that the citizens need. The access of justice by the people is facilitated by this scheme through the provision of unbiased and apt response to claims of medical negligence in healthcare service offered by healthcare service providers. The time that will be used up by the litigation of the medical malpractice claim can be redirected into the treatment procedures that the claimant of medical malpractice needs. This act will decrease the costs of medical services that are spent by the government and will redirect also the time used by the courts in the proceedings for these cases to the search for resolution of other cases handled(3).
A positive attribute of the Redress scheme in the NHS Redress Act of 2006 is the establishment of a consistent response to the cases of medical negligence. This scheme is very patient oriented such that the scheme encourages the claiming of redress despite that the patient who needs the redress due to medical malpractice is already dead. Under the Redress Scheme the family of the patient shall be able to claim redress for the medical malpractice despite the death of the patient. The family members like the wife and children hence are eligible to receive the financial compensation after the case is settled through this scheme even though the patient whom is the claimant is already dead.
Apt correction of the condition which is a consequence of the medical negligence can be attained through the provision of: remedial healthcare services; enlightenment of the patients with what went wrong, apologizing of the healthcare service providers to the patients; and financial compensation to the patients that suffered the consequences of the medical negligence(3). The road to the royal assent of the NHS Redress Act of 2006 is not a smooth one but rather a series of intensive debates in the commons and Lords. Before the royal assent, the bill generated positive and negative responses from various concerned institutions. Various groups lobbied for the modification of different components of the bill(7). Though many appreciated the government’s initiative to make the procedure for the redress of the claims of medical malpractice easier, faster, and with reduced cost; various criticisms on different aspects or parts of the said act still emerged.
Among the criticisms of the act is that this is only a regulatory guide for the formulation of the redress schemes to be implemented and not the actual redress scheme. The task of formulating schemes for redress in medical malpractice claims is assigned to the Secretary of the State. The guidelines on how the processes of the redress schemes will be implemented are included in the said act but an actual scheme has not been created by the application of the act itself(8). The act did not create stable schemes that cater the different redress claims of healthcare patients. Instead, the redress schemes that shall be created are variable and largely influenced by the Secretary of State. The formulation and implementation of the schemes are in accordance to the preference of the secretary of state.
The usual redress for any claim of medical malpractice includes provision of an explanation of the reason of the existence of the malpractice in the course of the treatment of the patient; apology from the healthcare service providers(s) that committed the negligence or malpractice; provision of compensation for the damages that were inflicted to the patient that was supposedly not to be done any harm; offering of treatments to the injuries received by the patient as a result of the medical malpractice; and establishment of preventive measures in order to prevent the repeat of the emergence of similar cases. All of these usual rectifications are not assured by the redress act to be present in the schemes that will be formulated by the virtue of the redress act. The settlement of the claim can either have all of the aforementioned inclusions or only one of all the said inclusions(8). The claimants of medical malpractice are not obliged to undergo the schemes hence the clients can opt to pursue legal proceedings despite the establishment of any schemes for this medical malpractice redress(8).
Uniformity in the procedures to be undertaken by patients which claims medical malpractice in the healthcare services provided to them is non-existent in the establishment of the redress schemes. The choice to undergo in the schemes is in the hands of the claimants and not dictated by the act. This encourages different approaches of claiming medical malpractice retribution. There is a bias because those patients that will file their claims to the legal courts will suffer from the expenses due to the legal proceedings whilst those that opt to undergo the schemes proceedings will saved from the enormous expenditure due to the fees in the legal proceedings.
Claims of medical malpractice that are already subject to legal proceedings will not be honored in the schemes(9). This means that claims which are in the process of litigation in the UK legal courts shall not be accommodated in the schemes. The claimants of the medical malpractice redress shall not be able to opt to transfer their claims in legal courts once they accept the offer provided in the schemes. Whilst, the claimants of medical malpractice that will undergo in the schemes formulated by the virtue of the act needs to relinquish their right to pursue any civil litigation in legal courts after the management of the scheme falsifies the liability that is claimed by the patient to have been committed by the healthcare provider(8).
This provision of the act is not promoting the rights of the medical malpractice victims. The claimant not being able to attain redress in another litigation body after the proceedings in the scheme is a bias. The rationale for this is that the act assures the healthcare provider safe from medical malpractice liability suit in the legal courts once the scheme authorities denied the allegation of liability. The freedom from liability of the healthcare professionals is protected by the schemes that will be formulated through the act. The scheme includes no appeal process. This means that if the NHSLA already made an offer for the amount of financial redress it will not be altered.
Thus, the claimant is left with the decision to either accept the offered redress by the NHSLA or abandon the offer and seek litigation in the legal courts(6). Claimants whom shall opt to dismiss the offer and instead seek litigation in legal court will be of disadvantage because the proceedings will start from scratch. The time and effort consumed in the proceedings under the scheme will be put into waste once this happens. Therefore, the no appeal attribute of the act for redress really is a disadvantage to the claimant. Another vague and can be considered a negative characteristic of the Redress act of 2006 is that the NHS Litigation Authority (NHSLA) is the sole managing agency in the implementation of schemes in medical malpractice claims settlement(8).
The Redress Bill fails to include an independent provider to supervise the scheme because the NHSLA is the only one tasked to operate the scheme. The tasks of NHSLA involve the formulation of decisions of liability and compensation; and the establishment of investigation of the raised claims(6). Thus, under this tort the NHSLA will be both the judge and the jury of the medical negligence cases. The NHS is the agency that defends their healthcare practitioners to the claims of medical malpractice. It is a bias favoring the healthcare practitioners in delegating members of this agency to be the investigator, judge, and jury of the proceedings of medical malpractice claims(10).
The capability of this agency to influence the significant aspects of the investigation will pretty much alter the proceedings of the cases. There shall be a significant conflict of interests as the agency will function like those of the components of the judicial system. The acknowledgment or denial of the existence of malpractice liability by the medical practitioner is in the hands of the NHSLA which is supposedly the defendants of the healthcare professionals. Through this method of seeking redress the patient’s are of disadvantage because clearly there is a bias favoring the medical practitioners that are under the protection of the NHS. This act also does not include the provision of responsible agency for the commencement of the Schemes proceedings.
The guidelines for the start of the proceedings as well as the operational rules of the schemes are not included in the said act. The task of deciding for the members of the scheme and the methodologies of payment of the damages due to medical negligence is assigned to the Secretary of State. The claims for medical malpractice thus are not assurances that the claims will be given justice better under the schemes that will be formulated(8). This act also does not specify an independent investigation about the reasons of the occurrence of medical malpractice so that the roots of the problem can be solved(11). Rather the act focuses on formulating redress schemes for the medical negligence claims.
It is therefore an act to resolve the medical negligence cases but it does not eliminate the possibility of occurrence of the problem itself. A much more effective act should be able to address the factors that catalyze the existence of the medical negligence cases. It is the duty of the healthcare service providers to alleviate the health condition of the patients without doing any harm to these patients in the process. It still remains unknown as why these medical malpractices occur in spite of the oath of the medical practitioners to help the patients and do no harm along the way. The solution of the growing cases of medical malpractice is not only the management of the claims that arises but rather the eradication of the root of the problem.
Intensive study should be conducted to determine the predisposing factors for the existence of medical malpractice as well as why this problem multiplies. After the identification of these factors and incorporation of solutions to the main problem which is the existence and multiplication of medical malpractice, only then shall an efficient act formulated. The Liberal Democrats are not satisfied with the act due to the act’s lack of coverage on primary care medical services(12). The schemes that will be created as stated by the provisions of the act apply only to hospital care and exclude the dentistry, ophthalmic, or pharmaceutical services. The act only includes the primary care health service providers.
The trend in the provision of healthcare services is shifting from the primary care into the non-primary care services hence there is observable increase in the number individuals that are availing the non primary care services such as those of the community health care providers. Filing cases of medical malpractice against non- primary care doctors will have to undergo the legal proceedings. These claims of medical negligence by non-primary care practitioners are also common these days thus the expenditures in legal proceedings by the health consumers are still high. Another aspect wherein the liberal democrats are dissatisfied with the bill is the vague definition of negligence. This should be clearly stated so as to prevent those medical practitioners from abusing this vagueness in their defense of the medical malpractice suits.
The NHS Redress Act of 2006 despite various criticisms is widely promoted by the government of United Kingdom especially the National Health Service (NHS). The act is considered by this agency as an alternative to the present system of proceedings for medical malpractice claims. The act involves the establishment of schemes by the secretary of the state so that the claims of medical negligence shall be better responded. The schemes that will be created by the secretary of state shall be locality specific. The claims of malpractice that are of less severity can be processed through the NHS Redress Scheme as an alternative to litigation. This methodology decreases the risks of litigation as well as reducing the client’s burden of legal costs.
This scheme is among the UK government’s initiative to improve the access to justice especially in the healthcare industry(3). This act diverts the emphasis of resolving small medical negligence claims in the courts of the United Kingdom to the settlement of these cases by the NHS Redress scheme that is supervised by the NHS Litigation Authority (NHSLA). This scheme is expected to be patient oriented and will improve the services offered by the government to the health of its constituents. The scheme will help the patients pursue their rights of claiming the redress for medical negligence and promote the institution of punishments to healthcare providers that commit medical malpractice.
This Redress Scheme thus in general will reduce the cases of medical malpractice because the healthcare service providers are aware that apt actions against inconsistencies in the offered medical services as well as the patients are also conscious that they have the option to pursue redress when medical malpractice is done to them(3). This new methodology for medical malpractice suits is patient oriented because the process does not undergo any legal proceedings hence the subtraction of the legal fees that the patient claimant will supposedly spend for the case. The proceeding of the malpractice claim is handled by the NHSLA by virtue of the act.
The patients who think they experience medical malpractice shall not spend enormous amounts of money to attain an appropriate redress. The act encourages the filing of cases of medical malpractice so as to prevent the repetition of the event(3). The reduction of the private expenditure of the claimant is a big advantage of this redress scheme. Another is the assurance that the claimant will have proper apology, explanation of the events that resulted into the injury of the patient, treatment of the damage inflicted to the patient, and financial compensation if NHSLA acknowledges the presence of the negligence in the part of the medical practitioner.
The redress scheme shall also ensure that the settlement for the claim of malpractice happens within a short period from the time of the complaint. The claimant will be saved from consuming too much of his or her time in the litigation of the case. Prior to the investigation of the claim, the NHSLA will already evaluate if the case has merits and not just false accusations. Through this selection method the accumulation of cases shall be prevented as well as the proper allotment of time for the proceedings of the claim shall be instituted(13). In the redress scheme the leaders of the healthcare providers will be expected to take responsibility for their employees.
This means that once something wrong happen, the leaders of NHS will take apt action unlike in the past wherein the culture in the NHS is very defensive when claims of malpractice by the members of the agency arise. The organizational trend that is going to be instituted by the redress scheme is the assuming of responsibility by the members of NHS when medical malpractice cases arise. These members that are governed by the scheme shall conduct immediate investigation about the case, supply the client with the explanation of the case, and then shall consult the NHSLA which is the scheme authority for the offering of settlement to the patient if needed. The Redress Scheme is thus advantageous because the patient will not have a hard time searching for answers why the treatment procedure instead of alleviating their condition leads to injury.
Instead of waiting for the court litigation to compensate for the treatments that are needed due tot damage done, the scheme will conduct immediate actions for the provision of treatment to heal the damage done by the medical negligence act. Then if needed the financial reparation will be arranged to compensate to the damages such as pain, loss of earnings, suffering, and stress to the patient as well as their families(3). The claimant of redress though will waive its right to litigate once he or she accepts the redress offer made by the NHS, is not deprived of their rights because before accepting the offer of redress the claimant is given the option to accept the offer or seek litigation in legal courts. The Redress thus offers another choice to the patient without eradicating the claimant’s right to seek legal litigation in the courts.
Another road to the redress that the claimant seeks is presented by the redress scheme thus the patient can choose which road he or she thinks will provide better redress to the negligence case(3). The Redress Scheme for medical malpractice under the Redress Act of 2006 though shall be supervised by the NHSLA has the involvement of the local bodies because the secretary of the state is the one who is tasked to formulate the redress scheme. The local bodies that are involved in the redress scheme shall decide whether the claim of the patient is eligible for the scheme. These local bodies are also responsible of facilitating the scheme in behalf of the patient. The patient thus will have guidance in the processing of the claim under the scheme.
Through this type of system the claimants of redress will be offered good response to their claims and as much as possible make the proceedings experience of the patient a positive one. The redress act will reorganize the NHS into a patient oriented agency that responds to the complaints of their healthcare services clients in an excellent level of professionalism. The reforms of the NHS that is facilitated by the Redress Act will transform the culture of the NHS into a patient oriented organization that emphasizes the reduction of the occurrence of malpractice as well as assist the patients will outmost capacity in times that medical negligence occurs(3).
The NHS Redress Act after various debates in the different law making bodies of UK has incorporated the option of the redress claimant to avail joint instruction of independent medical experts to assess the merits of the case before the NHS offer the redress. The scheme also includes independent legal guidance to be paid by the NHS for the redress claimant as long as the NHS has already offered redress and agreed to have joint instruction with medical experts(14). Allowing medical experts to be legal aides to the claimant is a positive component of the redress act. The patient claimant of redress needs support and guidance in the legal aspects of the proceedings to ensure that the claimant’s privileges are not tampered in favor of the healthcare providers.
In every act the presence of problems is inevitable but these problems have remedies. If a patient that seeks redress thinks that the redress offered by the NHS is not enough to compensate for the damage that has been inflicted to him or her, then the claimant can seek litigation in legal courts. The non-compulsory nature of the redress scheme enables the persistence of the claimant’s rights to seek justice in legal courts whilst allowing the achievement of redress to those claimants that will be satisfied with what is offered by the NHS. The claimants that will be accept the redress of the NHS will be of advantage in the monetary expenditure because they do not need to pay for legal aide like in court litigation.
The proceedings of the case will also take a short span of time thus the patients will be allowed to continue their lives that has been disrupted by the malpractice damage after the acceptance of settlement. The scheme includes the provision that the compensation to be offered will be similar to those of the courts thus the claimants hopefully shall not be disadvantaged. The British government’s intention in implementing the act is to hasten and improve the processing of medical malpractice claims without subjecting the patients to high litigation fees and long duration of the litigation. The government’s initiative to help the patients that suffer from medical malpractices is existent.
The problem though is that this initiative is centered on helping these patients attain redress instead of improving the healthcare industry to reduce if not totally eradicate the medical malpractice cases. Preventing the occurrence of the problem has greater efficiency than only applying strategies to manage the redress claims for medical malpractice. The implementation of the schemes for redress will aide the patients that are claiming redress but it will not eradicate the increasing emergence of medical malpractice. The government especially the NHS should be able to find solutions so that the cases of medical malpractice will be reduced and then eventually eradicated.
Though the redress schemes shall be not enough solution for the increasing numbers of cases of medical malpractice, it can hopefully be able to provide appropriate redress to the claiming patients. Though schemes for medical malpractice will be established by the secretary of state by the virtue of the Redress Act of 2006, the claimants of medical negligence still has the option to have litigation in legal courts because the redress scheme is not compulsory to all the financial claims under 20,000 Euros(14). This implies that the claimant can opt to choose which proceedings for the claim will be used in its case. The claimant can either choose to have redress through the legal courts or through the redress schemes.
The feared disadvantage though in the establishment of schemes for redress of medical malpractice are: the patient claimants will settle for less than the redress they deserve due to the convenience of the redress scheme; and the NHS will just continue to address the redress claims without learning from the claims. The redress schemes have dual impact, it could either facilitate realization within the NHS of the problems in the industry that resulted into the malpractice or the NHS will utilize the redress schemes to protect their employees against the claims of their patients. Though the Redress Scheme has many loopholes and various groups want to have it modified, the healthcare consumers should be proud of the initiative that is done by the government especially the Department of Health. It is a start that they are finding ways of reforming their organization so as to provide better and high quality service to its constituents.
This initiative is commencement of the future reforms that will be undertaken by the government to provide excellent service to the healthcare consumers of United Kingdom. The various groups that lobbied for the revision of the bill should also be proud of themselves because without them the Redress Bill which is now an Act shall have not gained more credibility as legislation. The NHS Redress Act already received its royal assent which implies that it already has undergone through rigorous debates so the focus now should shift from the criticisms of the act to ensuring that the act will be able to establish efficient redress schemes.