The Unsustainable High Costs of Clinical Negligence Litigation in England

By John Tingle

Presently in England clinical negligence costs are high and are set to grow even higher. The National Audit Office (NAO) has recently examined clinical negligence costs and they go into some detail on the costs of claims and make a number of important recommendations in a report. Very useful insights are given on the management of clinical negligence claims in the NHS. There is a focus on clinical negligence claims managed through the NHS Resolution’s indemnity scheme, the Clinical Negligence Scheme for Trusts (CNST). Trusts pay contributions to this scheme which is a risk pool and when a legal claim is made against them NHS Resolution takes over the claim and meets the associated costs. The NAO argue that urgent changes are needed to deal with the problem of the increasing costs of clinical negligence claims.

The types of clinical negligence claims that can occur are discussed in the report. They can and do occur in all types of clinical specialties and it is possible from claim records to identify the most common reported.

The most common are:

  • failure to perform a treatment or a delay in performing it (22% of claims);
  • failure to diagnose a condition or a delay in diagnosing it (17% of claims);
  • inappropriate treatment (7% of claims); and
  • problems during operations (6% of claims).

The Costs: Facts and Figures

The report paints a very gloomy picture of increasing and unsustainable clinical negligence cost increases. The financial costs of clinical negligence are significant and are rising at a faster rate year-on-year than NHS funding:

Between 2010-11 and 2015-2016, the average percentage of a trust’s income spent on contributions to pay for the Clinical Negligence Scheme for Trusts increased from 1.3% to 1.8%. Our analysis indicates that this percentage is likely to rise to about 4% by 2020-21. (p6)

Cash spending by NHS Resolution on clinical negligence claims is likely to double in the next four years, from £1.6 Billion in 2016-17 to £3.2 Billion by 2021. Over the last ten years spending on the CNST has quadrupled from £0.4 Billion in 2006-07 to £1.6 Billion in 2016-17 and these costs the NAO argue are likely to increase even more unless fundamental changes are made to stem the rise. The report discusses in a lot of detail the possible contributing factors and the discussion gives the reader a very clear insight into the challenges of clinical negligence litigation and the fundamental Issues that are raised in terms of cost control and access to justice.

Much more work needs to be done and research carried out on issues such as why patients sue and complain. The government needs to take a much more holistic and integrated approach to dealing with the problems. A cross system, coordinated, joined up approach that links the health system with the justice system is needed. There needs to be a conceptual underpinning of policy provision. We have piecemeal initiatives that will save some costs but these are not enough in there entirety to stem the imminent increases in costs and claims that lie on the horizon. More coordinated deep thinking of the issues is needed. This NAO report points the way forward in achieving these aims.

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About John Tingle

John Tingle is Reader in Health Law at Nottingham Law School, Nottingham Trent University in the UK.He has a fortnightly magazine column in the British Journal of Nursing where he focusses on patient safety and the legal aspects of nursing and medicine. John teaches Tort and Medical Law on the LLB at Nottingham Trent and Patient Safety on the LLM in Health Law and Ethics.