Current trends in clinical negligence litigation in the National Health Service (NHS)

By John Tingle

NHS Resolution (the new operating name for the NHS LA, National Health Service Litigation Authority) occupies a central role in the NHS clinical negligence claims environment. They manage clinical negligence claims on behalf of NHS trusts (hospitals) and other bodies. They also provide indemnity cover and have an increasing role in assisting the NHS with risk management and patient safety.

NHS Resolution have recently published their Annual Report and Accounts which contains important data, trends, case studies and other information on clinical negligence and patient safety. This report also very clearly signals the new more inclusive, upstream, closer to the problem approach that NHS Resolution is now taking to its work.

Facts, figures and trends

It is stated in the report that for the third year in a row clinical negligence claim numbers reported to NHS Resolution have fallen in number. They have fallen, by over 10% in three years. This is good news but unfortunately it is not accompanied by a reduction in the cost of claims payments, these continue to rise for a number of reasons, which are discussed. Rising claimant legal costs are one reason and these rose by 19% last year to almost £500 million. Figures for the past year show that the NHS paid out more than £1.08 billion in damages to claimants in 2016/17, which is an increase of £132 Million (14%) over the previous year. NHS resolution also has to make provision for claims payments that it might have to make in the future and this now stands at £65 Billion. There are a number of factors discussed in the report, which explains this figure. This increase can be largely related to financial factors outside the control of the NHS driven by the current low interest rate environment.

Some cases do not succeed, no payment of damages

The report states that some cases brought by claimant patients do not succeed and there is no payment of damages:

We continue to receive and defend a high number of claims which are closed without a payment of damages. For clinical claims we closed 5,252 in 2016/17 compared to 4,935 in 2015/16 without the payment of damages. (p.19).

This should not necessarily be viewed as a problem. When legal proceedings are commenced, there is often no guaranteed outcome. There are two sides to every story and in clinical negligence cases; complicated issues need to be determined such as breach and causation.

 Maternity claims are going to be a focus for NHS Resolution. Whilst they account for only 10% of claims received they represent 50% of the £4,370 million value of claims received in 2016/2017.These cases are expensive because of the complex nature of the injuries and the length and type of future care that will be needed for the injured baby. NHS resolution say that one damage claim for one child could exceed £20 Million under today’s legal framework.

NHS resolution are preparing for the introduction of an Early Notification Scheme for scheme members to advise them within 30 days of the incident of potential cases of brains damage at birth from April 2017 so that matters can be addressed more quickly.

The report provides a very useful contemporary, real time window into litigation and patient safety in the NHS. The report can provide by itself a very useful teaching tool through its case studies and data.

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