NHS claims steady but costs rise, reports NHS Resolution

Clinical negligence claims against the NHS are falling as a proportion of the number of treatment episodes, but concerns remain about rising costs, according to NHS Resolution’s annual report and accounts.

NHS Resolution’s annual report and accounts for 2018/19, published earlier this month, show that:

• The provision for claims indemnified has increased by £6.4 billion to £83.4 billion as of 31 March 2019
• 10,678 new clinical negligence claims were received, compared to 10,673 in 2017/18 an increase of just five claims (0.08%)—a flattening out in an environment of rising NHS activity
• The number of new non-clinical claims, typically employers’ and public liability claims, rose from 3,570 received in 2017/18 to 3,585 in 2018/19, a modest increase of 0.42%
• When considering settled claims in 2018/19 of 11,417 clinical and 4,237 non-clinical claims, the proportion settled without damages was 44% and 56%, respectively
• The number of mediations on clinical negligence claims has increased by 119% in a single year, up to 380 from 173 in 2017/18—exceeding the number of clinical negligence trials (62) more than six-fold
• The number of new referrals received by the practitioner performance advice team on the performance of doctors, dentists and pharmacists within the NHS remained broadly consistent, with 925 new requests for advice compared to 919 in the previous year
• The primary care appeals team received 171 appeals in accordance with the Pharmacy Regulations compared to 170 in the last financial year

NHS Resolution explained in a blog post on the annual report that “there is encouraging news with evidence of an increased engagement with ways to resolve concerns which keep patients and NHS staff out of court, accompanied by a welcome reduction in legal costs”.

“The number of cases going into formal litigation has remained stubbornly more or less the same for well over a decade. We have been on a mission to change that. We set ourselves a challenge to disrupt the traditional approach taken to clinical negligence claims, to encourage mediation and other forms of alternative dispute resolution (ADR) and to reduce the number of claims going into formal court proceedings.”

NHS Resolution continued: “There has been a noticeable culture shift in the clinical negligence market. We are now mediating more clinical negligence cases than ever before and these outnumber those going to trial by 6 to 1. There is more to do but the benefits of mediation and other forms of ADR are clear: reducing the stress and burden on patients, NHS staff and their families and giving them the time and space to explore what happened.”

The report also highlighted the benefits of NHS Resolution’s strategy to work more closely with system partners in health and justice using the platform of 100% NHS membership of the indemnity schemes and the lever of pricing to drive improvements in patient safety.

“Drawing attention to the real costs of harm of £9 billion a year versus the annual cash cost of £2.4 million, the report gives explicit backing to the national patient safety strategy recently published by NHS Improvement and the continued drive across the health system to improve maternity safety.”

NHS Resolution added: “We must do everything we can to learn from what goes wrong and, where there is agreement as to what needs to change, to support that through the indemnity schemes we run.  Our maternity incentive scheme, which uses a bundle of ten actions, informed by our research and our partners makes the best use of the financial lever we have to drive investment in safer care, improve things for patients and NHS staff and ultimately reduce the costs of avoidable harm.”

Reacting to the report, Association of Personal Injury Lawyers president Gordon Dalyell said: “Every penny spent on clinical negligence claims could and should be avoided, because those injuries and deaths should never have happened in the first place. None of the claims represent a ’win’ for the patient involved. They would rather not be injured needlessly and they would rather not have to go through the stress and expense of suing the NHS.”

“The NHS Patient Safety Strategy published earlier this month includes a welcome approach to learning from clinical negligence claims to prevent harm. The NHS must do a better job of learning from its mistakes.”

“We all want to protect the health service but the simple fact is that an injured person’s needs are not reduced because the institution which caused the needless harm is so loved. The right for an innocent, injured patient to receive fair redress also must be preserved.”

Dr Christine Tomkins, chief executive of the Medical Defence Union, also responded to the report: “The cost of clinical negligence claims continues to spiral out of control and should deeply concern all of us who rely on NHS services. In 2018/19 NHS Resolution paid out £2.36 billion in compensating patients through its clinical negligence schemes. This could have funded over fifteen million MRI scans or 112,000 liver transplants.”

“While NHS Resolution reports that claims numbers have stabilised, it also states that compensation levels have risen by over 13%. High value claims settled often in excess of £20 million. Such sums would have been unthinkable until recently.”

She continued: “Every example of negligence takes its toll on the patients and families involved, but the spiralling compensation being paid out puts an enormous strain on NHS funding affecting all of us, and a balance must be struck.”

“The NHS and the care it provides is precious to us all and we must take urgent action to curb the sums being lost to front line clinical care through out of control compensation payments. This requires urgent tort reform.”

Mark Dugdale