The complex reasons why a claimant takes legal action

Reasons Why Claimants Take Legal Action

Despite occasional reports to the contrary, patients affected by medical negligence do not usually initiate compensation claims solely for financial reasons. According to a recent investigation, other motives play a part and – in several cases – a combination of factors. Indeed, as experienced legal practitioners and medical experts recognise, complaints against the National Health Service are seldom about money alone.

In 2017, the Parliamentary Public Accounts Committee (PAC) highlighted a lack of consistent data and scant evidence surrounding the reasons for patients’ claims for medical negligence. Accordingly, NHS managers decided to act.

Insights into Claims

Thus it was that NHS Resolution commissioned the Behavioural Insights Team to analyse pre-claim circumstances, complaint processes and the motivation and probability of claims occurring, along with their consequent outcomes and the scale of the apparent problem.

  • The Behavioural Insights Team took on several tasks in parallel between January and August 2018:
  • Reviewing literature and patient communications.
  • Drawing up a process map to summarise key findings.
    Surveying 728 patients who had claimed, including questions asking about the underlying incidents, how each patient considered the subsequent handling of their complaint (if they had made one), the reasons behind the claim and the eventual outcome.
  • Carrying out one-hour telephone interviews with twenty previous claimants.

In autumn 2018, NHS Resolution published the results of the team’s investigation.
The investigators’ key findings were that:

  • Claimants generally considered the reactions of NHS administrators to be unsatisfactory, both in terms of providing an adequate and appropriate explanation and an apology for the incident.
  • Most subjects mentioned dissatisfaction with the complaint handling process, singling out verbal and written communication along with not feeling that the NHS had tried to achieve a meaningful outcome to resolve the issue(s).
  • Participants initiated claims in response to a mixture of external and internal factors.

External reasons for claims included suggestions from NHS staff that making a claim would be appropriate, conversations with friends, family or a wider social network and advertising. In contrast, personal motivation included:

  • A desire to prevent similar incidents happening to others.
  • Wanting an apology or an explanation for the incident, or a detailed investigation of it.
  • A wish to hold the clinicians involved to account.
  • Emotional responses (e.g. frustration and anger) brought about by poor incident or complaint management.
  • Financial compensation.

In the published report, the experts also described what they termed as cognitive biases such as sunk costs, loss aversion, and optimism surrounding the potential outcome of claims.

Patients’ Doubts

Of the patients who had made a formal complaint, only around half had received a subsequent invitation to meet with the NHS to discuss the circumstances and grounds. Pointedly, most complainants considered that the healthcare provider had not investigated satisfactorily. Indeed, nine out of ten survey respondents doubted whether the service had taken any action at all to deal appropriately with the root cause(s) of the problem.

Intrinsically, since the evidence provided focuses on people’s experiences, it is anecdotal. Whereas some affected patients stated their need to claim compensation to fund high ongoing care costs because of their losses, other claimants perceived injustice, felt uneasiness or wanted to share what had happened. Nonetheless, for most claimants, the decision to act had not been a light one; defending legal action can be difficult, intrusive and distressing.

In essence, the survey confirmed what patients’ organisations had suspected for years: poor healthcare provider responses, deficient complaints procedures and inadequate apology letters that tended to provoke litigation.

Duty of Candour

Finally, when discussing their case histories, some claimants referred to events before 2014. In that year, the duty of candour came into force. As the report commented, observers are waiting to see whether the new obligations as formalised in the legislation have a positive effect on the situation.