It has recently been reported by the BBC that NHS England faces paying out £4.3bn in legal fees to settle outstanding claims for clinical negligence and that there has been an “unsustainable rise” in the cost of clinical negligence, with calls for a fundamental reform of the current system.
It is not the first time that the cost of clinical negligence has gripped headline news, nor will it be the last.
I feel it is important to emphasise that Claimant Clinical Negligence lawyers only recover their fees in successful cases. Lawyers are not entitled to recover their fees in the cases which they have lost, meaning that these cases are not without merit. It should be made clear that, when the article talks about the “cost of clinical negligence”, it is referring to the legal fees incurred by both Parties, the Claimant and the Defendant.
I also question the accuracy of the quoted “£4.3 billion” figure and I suspect there is a degree of scaremongering here…
NHS Resolution, the NHS’ Solicitors, confirmed in their annual report for 2018/2019 that £581.9 million was spent on both Claimant and Defendant legal costs in total during that year, split between Claimant / Defendant as £442.3m / £139.6m.
I suspect the BBC has come to this £4.3 billion figure on the basis if all cases currently faced by the NHS were to succeed, this year. However, this is an unrealistic approach, as these cases can take several years to conclude and, of course, a large portion of these cases ultimately fail.
Turning to the calls for reform; let’s not forget that there has recently been such a reform, in April 2013, with the introduction of LASPO. This saw the introduction of the costs budgeting process where the Court sets strict limits on what the lawyers (both Claimant and Defendant) can spend in clinical negligence cases.
Statistics suggest that these reforms are working. NHS Resolution also confirmed in their annual report for 2018/2019 that spending on Claimant legal costs had reduced by more than £24 million. Interestingly, it also reported that Defence legal costs had increased overall to £139.6m, reflecting a rise by 8.3%. The theme was the same in 2017/2018, when Claimant legal costs fell by 6.4% but observed an increase in Defendant legal costs by 2.5%.
Conduct of the lawyers can play a key role in the costs of clinical negligence also. It is easy to blame Claimant lawyers for the costs of clinical negligence but little regard is given to the complexity of a case, the number of independent experts involved and the conduct of the Defendant lawyers. For example, I have personally experienced a case where the Defendant robustly defended a claim involving a child who was brain injured at birth. This claim was defended for years, incurring hundreds of thousands pounds worth of costs, and it was only shortly before trial, when the Defendant disclosed the wrong copy of their expert report, where it became clear that their expert agreed with the Claimant’s expert, that the injury could have been avoided. I accept that this is an extreme example, but the point here is; Defendants need to stop defending indefensible claims.
Turning to the number of new claims, it is suggested that the NHS receives 10,000 new claims for compensation each year. Again, not all of these claims will succeed, and whilst 10,000 new claims per year sounds like a lot, with an estimated population of 66 million in the UK, that is actually a very small number.
Generally speaking, patients who have suffered an injury as a result of medical error are very reluctant to bring a claim. Often what drives them to do so is to find out what went wrong and to prevent such incidents from reoccurring. We saw in the news earlier this month that the widower of a 57 year old woman who died in hospital received an anonymous letter from a whistle-blower within the NHS about errors that had occurred in her care. It has also been reported this year that an astonishing number of baby deaths at the Shrewsbury and Telford Hospital had been investigated, where families had been left for years without answers.
Quite understandably then, given the above examples, there is a degree of mistrust between patients and the NHS. Injured patients who are left without explanations as to why their injury occurred, naturally seek independent advice from lawyers, to conduct an independent investigation, to achieve answers.
The BBC itself reported recently that computer systems within the NHS are outdated and that clinicians have to juggle up to 15 different logins. So not only are our hospitals understaffed, the clinicians are on the ground are stressed, overworked, have too many patients, and they don’t have the equipment or technology to support them. Dare I say it is inevitable that people who are overworked will make mistakes? I do not agree therefore with the suggestion within the article that patient safety is not compromised.
In my view, patient safety must take centre stage. We need to move on from the scaremongering, quoting misleading figures in the media to prompt public outcry and trigger government response. The answer is simple, less mistakes equals less claims, which will inevitably result in a reduction in legal costs to the NHS.