2 February 2018 | Comment | Article by Lynda Reynolds
The cost of NHS clinical negligence claims has hit the headlines again with the usual furore about money being diverted from frontline NHS care to lawyers and fuelling a compensation culture. These headlines fail to reflect the fact that if there was no negligence, there would be no claims and no need for lawyers.
The cost of clinical negligence claims last year has been reported as £1.7billion, but this equates to just 1.4% of the total NHS budget. This is not an excessive percentage and no doubt less than many organisations spend on complaints and litigation.
The Telegraph reported yesterday that the cost of private finance initiative (PFI) contracts in the NHS is £2bn a year - far more than the cost of clinical negligence claims. This is £2bn a year of public money going to private companies. I am sure most people would agree that compensating victims is a more appropriate use of funds. Compensation is carefully calculated to put the person back in the position they would have been in if it weren’t for the negligence. When a person receives compensation for negligence they have experienced, they have not had a windfall or bonus, they are just receiving the correct amount to reflect the harm done.
Master Cook, a High Court Clinical Negligence Master, in his talk on 1 February 2018 at 7 Bedford Row commented that:
The focus on the cost of clinical negligence claims continues, fuelled by a perception that the cost of such litigation is far too high. This perception is readily used by the media to attack greedy lawyers who are accused of depriving the NHS of much-needed beds and nurses.
In reality, the legal costs associated with clinical negligence claims are increased when the NHS does not investigate errors properly, admit failings and propose reasonable settlement awards. It is always in the hands of the NHS to reduce legal costs by settling claims early. The experience of every clinical negligence solicitor is for the NHS to cause delays and escalation of costs.
The courts play an active role in the management of legal costs with the introduction of cost budgets and the assessment of costs by a judge at the end of claims. There is no opportunity for solicitors to charge whatever they want at the expense of the NHS as they are scrutinised at every stage by the courts.
Master Cook also welcomed NHS Resolution’s 5 year strategy to 2020 ‘Delivering Fair Resolution and Learning from Harm’ he said he welcomed a greater emphasis on learning from harm and learning from mistakes creates an opportunity to reduce the compensation costs.
He commented that one of the more depressing aspects of his job was seeing the same mistakes coming before him time and time again; quite often from the same hospitals. He went on to say that it was a ‘no brainer’ that if you learn from mistakes and don’t injure people you will not be required to pay large amounts in compensation and costs. This is particularly evident in cerebral palsy claims which amount to the largest proportion of compensation.
In addition to the number of claims, the award of damages has increased following the change in the Discount Rate to -0.75% which is set by the government and reflects the fact that when a claim is settled, damages are paid in advance and invested. The change in the Discount Rate means that victims would not see their compensation eroded by low interest rates and inflation. For over a decade prior to the March 2017 change, the Discount Rate was set at 2.5% which did not provide a sufficient level of compensation for the lifetime of the award.
Moving forwards there clearly does need to be careful consideration of the cost of clinical negligence. Steve Webber, Chairman of the Society of Clinical Injury Lawyers (SCIL) has said;
SCIL has been calling for a working party to reform the process of clinical negligence litigation, but also to challenge Defendant behaviour. The proportion of cases settled before the issue of proceedings has fallen, with more cases pushed into litigation by a culture of deny, defend, delay, which ends with the NHS losing more than three quarters of litigated cases causing legal costs to rise on both sides.
The key to reducing the cost of clinical negligence is, and always has been, to learn from and not repeat errors.
Over half of the cost to the NHSLA of clinical negligence litigation arises from obstetric claims, but in their report Five Years of Cerebral Palsy Claims, NHS Resolution reached the depressing conclusion that there had been no improvement in care during that period; the Royal College of Obstetricians and Gynaecologists report Each Baby Counts found that 76% of babies who suffered a brain injury or died in labour or the neonatal period would have had a better outcome but for avoidable errors.
Reducing errors and settling claims early in the process is the way to reduce costs, not to penalise those injured through no fault of their own.