A report of an interesting argument raised by the NHS in a clinical negligence case.
Last year I acted for a claimant at a joint settlement meeting. Both sides made compromises and the claim was concluded by agreement.
That's not news, but one of the arguments raised by the defendant NHS Trust certainly caught my eye. The Trust argued that my clients compensation should be reduced because he lived in a deprived area.
The parties did not agree on the claimant's life expectancy. There were minor disputes about the effect of his smoking and obesity but the defendant also argued that the place where the claimant lived reduced his life expectancy by several years below the "average" shown for a man of his age in the national Life Tables.
The claimant lived in a Northern inner city area I will call Poorbrook. Even leaving aside more complex arguments about the overlap of this geographical factor with others such as smoking, the bare fact is that this NHS Trust contended in documents in the case, that because the claimant lived in Poorbrook his life expectancy was reduced and the NHS was liable for fewer years of future care, case management, therapies, accommodation and equipment than it would have been had he lived in, say, Richtown.
|Rich and Poor Side by Side|
Whatever view was ultimately taken, privately or publicly, at the negotiation meeting, it was interesting that this argument was being run by a public body in an attempt to reduce its liability to a patient injured by its negligence.
There is no doubt that there are geographical variations in life expectancy and within the same cities or counties there are variations due to socio-economic factors. Poverty can affect life expectancy.
There are all manner of factors that can affect the prediction of a person's life expectancy, including, ironically, access to good healthcare. The question then is why should only some of those factors be taken into account, and others disregarded?
Litigators do not obtain evidence of every claimant's life expectancy. In many cases the parties rely on the "average" life for a person of the claimant's age and gender. In some cases, where the claimant's condition manifestly reduces life expectancy - for example because of a neurological condition or a diagnosis of advanced cancer, then evidence is obtained.
Where is the line drawn? How many cigarettes a day does a person have to smoke to render the use of "average" life expectancy invalid?
Why are non-health factors excluded from consideration? An actuary once told me that A level results are a good predictor of life expectancy? And what about genetics? Should all claimant's be screened? Should the courts routinely inquire into the claimants' parents' health?
It can readily be seen that the implications of pursuing this line of argument are profound.
The argument cuts both ways. Why shouldn't a fit and healthy person who has never smoked and whose parents both lived to a ripe old age contend that their life expectancy is above the average? A factor such as socio-economic status can also increase life expectancy. So a claimant from Richtown would be entitled to more compensation than the average claimant because he will be expected to live longer. NHS Trusts in the home counties would have higher compensation bills than those in the inner cities.
If we choose to ignore relevant factors such as social deprivation, then on what grounds? Is it that the "average" life expectancy tables take into account both the rich and poor? If so, then why make any adjustment for someone who is a life-long smoker or who is obese or diabetic? If socio-economic status or education is disregarded on policy grounds, who has determined the policy and what are its limits?
In short, I was struck by the fact that an NHS Trust ran an important argument which, if applied to all negligence cases would result in higher compensation for those already socially and economically advantaged and lower compensation for the disadvantaged.
I wonder whether this argument to redistribute of compensation has been considered at a policy level within NHS Resolution or the Department of Health? Has it been pursued in other cases and will a defendant wish to have it tested in court? Whether the argument was valid or not, it is one which is surely worth wider consideration and discussion.