NHS clinical negligence claims down but legal costs rise to £624m

Clinical negligence claims against the NHS dropped for the third year in a row but costs have continued to go up, with damages pay-outs remaining above £1bn and combined claimant and defence fees reaching £624m, the NHS in-house dispute resolution arm has announced.

According to NHS Resolution’s first annual report since changing its operating name from NHS Litigation Authority, lawyers who brought claims against the NHS were paid £498.5m in legal fees in 2016/17, a rise of 19 per cent on the year before; defence legal costs also rose to £125.7m.

While the number of claims fell 2.5 per cent from 10,965 to 10,686, the NHS paid out more than £1.08bn in damages to claimants – an increase of £132m (14 per cent) on 2015-16.

Suzanne Trask, a partner and head of the adult brain injury department at Bolt Burdon Kemp, told Solicitors Journal that providing data on medical negligence “should never be a bank balancing exercise”.

“Focusing on legal fees and the amount of compensation is the wrong way to approach an issue relating to patient care. When negligence occurs, of course it is costly. But the cost is far greater for the patient, who often has to face the challenges of a lifelong disability, and potentially a reduced life expectancy.”

The total cost of claims to the NHS in 2016/17 rose to more than £1.7bn, up from £1.5bn in 2015/16, and an increase of 98 per cent since 2010/11. NHS Resolution found that while obstetric claims only represented 10 per cent of clinical claims last year, they accounted for half of the total value of new claims.

NHS Resolution said it would focus on developing processes to manage maternity claims to better support the staff involved to help improve the experience for families involved in incidents. Early notification and involvement will assist NHS Resolution in sharing robust learning across the system, it said in a statement.

Trask said a far better way to address the human tragedy and its consequences, including the financial cost to the NHS and society, is to reduce the incidence of negligence in the first place. “We should focus our energies on finding opportunities to learn from mistakes when they occur, rather than looking to curb the help available to patients after the event.”

Unsustainable costs

Emma Hallinan, director of claims at the Medical Protection Society (MPS), said it was important that harmed patients receive reasonable compensation, but a balance must be struck against society’s ability to pay. “If the current trend continues the balance will tip too far and the cost risks becoming unsustainable.”

Hallinan echoed the concerns she made following a report published by MPS last month on the rising costs of clinical negligence, which recommended a cap on future care costs based on a tariff agreed by an expert group and fixed recoverable costs for claims up to £250,000 to stop lawyers charging disproportionate fees.

“Given the pressure on the NHS and the change to the personal injury discount rate – which has significantly increased the NHS’ provisions for future clinical negligence costs – there has never been a more pressing time to tackle this issue, alongside continued work to enhance patient safety.”

Matthew Rogers, reporter

matthew.rogers@solicitorsjournal.co.uk | @lex_progress