NHS Resolution, the body responsible for managing claims on behalf of hospital Trusts and now GP practices, released their Annual Report in July for the period 2019/20. The figures have not been widely reported so despite what we are often told by the press, you may be interested to learn that the total cost of clinical negligence claims in this period, including both sides’ legal costs, VAT, court fees, experts fees and compensation, was down from the previous year by almost £36 million and the entire cost of claims made up less than 2% of the entire NHS budget for the same period. It remains the case that the majority of the cost of all claims arises from babies who have suffered brain damage at birth due to negligence and need a lifetime of care and support.
In 2019/20 11,682 claims were reported and 15,550 were settled. Usually, there is a significant time lag of anywhere between 1 – 4 years between a case being reported to it being settled. In this recent period, almost 2/3 of cases were settled on behalf of the Claimant. As an experienced claimant clinical negligence litigator, one of the reasons for such a delay between reporting the claim and it being settled is because of the Defendant’s behaviour and in particular early denials of liability.
By the time the Claimant’s legal team is ready to notify NHS Resolution of a claim, in most cases they will be confident of their case having already carried out the necessary investigations with their medical experts. Therefore these early and probably unjustified denials of liability simply result in the Claimant playing the only hand left available to them and starting formal costly court proceedings. The claim then falls into the quagmire that is the court’s case management process with the most common outcome being that the claim settles in the Claimant’s favour.
In 2019/20, NHS Resolution introduced a new performance measure specifically to consider their “Repudiation Failure Rate” i.e. how many claims they initially denied and then went onto admit or settle in the other party’s favour. NHSR did not meet their target but accept this is still a work in progress. Unsurprisingly they also did not meet their target to resolve claims without the need for court proceedings.
While every effort is being made to reduce Claimant legal costs by way of costs budgeting and the rolling debate of fixed costs, NHS Resolution is still failing to properly assess risk and trying to battle on at the tax payers expense.
Clinical negligence claims are complicated and can be lengthy and drawn out but in many cases the injuries caused by clinical negligence are life changing and injured patients are left with no prospect of the situation being reversed. If this happens to you, a friend or family member, you should look to get specialist legal advice. While we may not be able to restore your health, we may be able to make you more comfortable and afford you the means to cope and manage. Please don’t hesitate to get in touch.
Ashleigh Holt – October 2020