Lord Justice Otton, a leading medical negligence judge and chairman of the Royal Brompton and Harefield NHS Trust, has instead called for a new medical negligence body to be run on similar lines to the Criminal Injuries Compensation Authority.
The judge said his decision to try to bring a change in the law had been prompted by the case of Patrick Bolitho, who died seven years after being admitted to St Bartholomew's Hospital, London, suffering from croup. The two-year-old boy attended the hospital on 11 January 1984 and was readmitted five days later when his parents' concern about his breathing increased. But after a delay in receiving medical attention in the hospital he suffered a heart attack, resulting in permanent brain damage. His parents then spent 13 years fighting for compensation only to have their claim rejected by the House of Lords in 1997.
Lord Justice Otton said: "Parents rarely succeed in proving negligence but suffer great financial hardship in rearing such children." Under his plan, patients would have to show only that their injury was because of what happened in the hospital and not prove a doctor's negligence.
Tam Dalyell, Labour MP for Linlithgow, has taken up the judge's recommendations with the Department of Health. Litigation is estimated to cost the National Health Service pounds 278m a year.
Lord Justice Otton said medical negligence litigation has led to "defensive medicine", practised by doctors over-conscious of being sued.
Many judges relied on expert testimony to guide them. "Judges are not equipped by their training, expertise or experience to carry out risk benefit analysis." He also said many hospitals "sit on" claims in the hope that the claimant will either "lose heart, run out of financial resources or fail to find an expert who will testify".
Under Lord Justice Otton's three-stage scheme the amount of compensation would be fixed by a panel of doctors rather than lawyers.
Claims under pounds 10,000 would first be considered by a clinical risk manager for the hospital, who could recommend the level of compensation. Claims between pounds 10,000 and pounds 500,000 would be dealt with by a medical injuries compensation authority. Very serious cases would go straight to that body, which would also decide whether the hospital should pay. Claimants would still be able to bring claims in the courts but would have any compensation paid to them deducted from the judicial award.
The British Medical Association welcomed the proposals and said a "no- fault" compensation scheme was the best way to deal with claims arising out of clinical negligence.Reuse content