Most potential clinical negligence cases in the last financial year were resolved without litigation, according to the latest annual report from NHS Resolution, the body tasked with dealing with claims for compensation on behalf of the NHS in England.
NHS Resolution (NHS-R) said that this demonstrated its "innovative dispute resolution strategy" that has effectively reduced litigation rates and costs over the past 6 years, saving the taxpayer an estimated £4.6 billion last year. However, the report said, the overall cost of clinical negligence continued to rise and "remains of concern".
Maternity cases continued to dominate clinical claim costs.
Obstetric Claims Represent the Biggest Tranche of Money Paid Out
Claims resolved increased from 16,484 in 2021-22 to 17,116 in 2022-23 (+3.8%), while the amount spent on claims rose from £2.5 billion to £2.64 billion (+5.6%).
Costs for clinical claims were driven primarily by damages for those who experienced severe harm and needed specialist care – hence obstetric claims accounted for 13% of claims by volume, but 64% by value.
NHS-R said it had focused resources on addressing the causes and management of brain injuries sustained at birth, as well as funding safety improvement plans for maternity care providers. An early notification scheme had reduced the average time between an incident and an admission of liability from 80 months to less than 18 months, allowing families "to access critical funding for immediate care needs without having to wait for a lengthy assessment of the full extent of the harm".
As well as claims management, NHS-R's remit includes giving practitioner performance advice, dealing with appeals and disputes between primary care contractors and NHS England, and sharing learning to help providers of NHS care "to understand their own claims risk profiles".
New Collaborative, Less Adversarial Approach
It said that its strategy "to keep patients and healthcare staff out of court" involved a collaborative, less adversarial approach with "diverse and more empathetic methods of resolving compensation claims".
Introducing the report, NHS-R chair Sally Cheshire and chief executive Helen Vernon, described this as "tremendously positive". They said that mediation, resolution meetings, and stock takes "all now have their place" in resolving patients' concerns, while accepting that "sometimes litigation will be unavoidable", for example to approve a child's damages award or clarify particular areas of law.
The approach meant that "a record 80% of claims were resolved in 2022/23 without resorting to legal action". More cases had been resolved without payment of damages, and this, coupled with a robust approach to fraud, yielded significant cost savings.
Ms Vernon said: "We will continue to explore and implement an increasing range of dispute resolution options to ensure that litigation isn't the only choice, whilst ensuring that claims are thoroughly investigated and settled fairly at the earliest opportunity."
Average Claim Cost Continues to Mount
Asked by Medscape News UK to comment on the report, Richard Pile, director of finance, strategic planning, and corporate services at the Medical Protection Society, said: "While the reported number of NHS clinical negligence claims is lower than expected, it is worrying that the average claim cost continues to grow, albeit at a slower rate. The growing cost of claims to the NHS, and how sustainable this is, remains a concern."
He added that such costs also had a significant impact on those healthcare professionals not protected by state-backed indemnity — such as dentists and private consultants — who had to pay for their own indemnity or insurance.
"While we welcome the Government consultation aimed to tackle increasing and disproportionate legal fees in clinical negligence claims, a more comprehensive strategy is needed," he said, noting that this had been promised by 2018, "but we are still awaiting the details" and "bold reforms" were needed to address the issue.
Enhanced Care More Effective Than Curbing Litigation Costs
Also speaking to Medscape News UK, Victoria Gofton, head of clinical negligence at personal injury specialists Thompsons Solicitors, said: "While it's commendable that NHS Resolution's annual report emphasises their innovative dispute resolution strategy's success in curbing litigation rates and expenses, seeing their overall costs rise is concerning.
"This is especially so given their pledge to foster positive change throughout the healthcare system, minimise patient harm, and alleviate the distress experienced by both patients and healthcare staff during claims or concerns.
"Although I fully back their objectives, it's disheartening that many of our clients' experiences don't mirror these aspirations. We've witnessed a surge in people reaching out to us this year. We, therefore, continue to wonder whether genuine patient safety and incident prevention lessons are being internalised."
Noting the costs of maternity claim payouts, she pointed out that while initiatives to address and settle claims swiftly benefit both families and the NHS, "the most effective approach to cut these costs is enhancing the quality of maternity care".
Ms Gofton added: "The numerous inquiries into UK maternity care, the trial of nurse Lucy Letby, and the pressing need for improvements, all underscore the urgency of preventing harm to everyone relying on the NHS."
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