Josie Baker, trainee solicitor in the Clinical Negligence team, looks at the issues involved in the rising costs of clinical negligence claims.
On 1 December 2017, the House of Commons Committee of Public Accounts published its fifth report of session 2017-2019. This report is entitled Managing the Costs of Clinical Negligence in Hospital Trusts and it examines the fallout following the National Audit Office’s (NAO) study on the same topic, which was published in September 2017. In their report, the committee considers the ongoing risks in respect of clinical negligence claims and make a number of recommendations.
The motivation for this discussion was the NAO’s finding that the annual costs of clinical negligence claims for trusts has quadrupled over the last decade: from £0.4 billion in 2006-2007 to £1.5 billion in 2016-2017. The number of claims registered with NHS Resolution has doubled: from 5,300 to 10,600 over the same period. The government and NHS have faced criticism for being slow to act on the predictable increase and for an alleged reluctance to admit mistakes.
Perhaps unsurprisingly, the report found that the increasing financial pressures on the NHS have now started to affect waiting times and the quality of care – in effect creating a vicious circle, as this in turn leads to more clinical negligence claims. In addition, the committee commented that a lack of transparency within the NHS and an innate defensiveness has stopped valuable lessons from being learned. Finally, it was felt that there was still a lack of consistent data across the system as to why people do – or in some cases do not – make claims in certain circumstances.
Rising cost of low-value clinical negligence claims
Overall, the committee was extremely critical of the failure to anticipate and address the issue of increasing costs, thought to be a result of two factors:
- Increasing damages for a small number of high-value, mainly maternity, claims; and
- Rising legal costs associated with low-value claims.
The recommendations made mirror those set out by the NAO report to a large extent and concern plans already laid out in NHS Resolution’s five-year strategy Delivering fair resolution and learning from harm, published in April 2017. Such recommendations include ensuring that resources are prioritised on patients most at risk of harm as a result of increased waiting times, considering the existing legislation and whether it is adequate, focusing on actions to reduce patient harm (particularly in maternity patients) and appraising measures to reduce the legal costs of claims.
Longer wait to resolve clinical negligence claims
In addition, the committee suggested that trusts should work with NHS Resolution to establish a cohesive manner of handling harmful incidents, in order to ensure that they are classified in a consistent way. It was felt that this would serve to improve the data available about why people make claims and why it is taking longer to resolve claims. The committee has set deadlines throughout this year for the NHS Resolution and Department of Health to report back on their findings.
It remains to be seen how well NHS Resolution and trusts will be able to put these recommendations in place, and how effective they will be. One thing is clear, however: as the financial pressures on the NHS increase, we can expect to see a corresponding increase in the number of claims being brought as patients have to wait longer for vital treatment and may suffer catastrophic harm as a result.
In the meantime, it is increasingly important that these claims are dealt with by those law firms with the necessary expertise. This should help ensure that they are resolved in the most efficient manner and without disproportionate costs being incurred that would further cripple an arguably already crippled system.
As claimant lawyers, those of us in the clinical negligence department at Lyons Davidson are hoping that this most recent report will serve to encourage NHS Resolution to be more responsive to our offers of settlement. Our aim is always to resolve claims as swiftly as possible in the circumstances, while still protecting the interest and wellbeing of our clients throughout the process.