House of Commons Report: Managing the Costs of Clinical Negligence in NHS Hospitals

By John Tingle

The House of Commons Committee of Public Accounts (Committee of Public Accounts) has recently considered the issue of managing the increasing clinical negligence costs in NHS (National Health Service) hospitals in a report. They make a number of important recommendations as well as putting into the spotlight a number of developing trends and themes. The report is linked to a report recently published by the National Audit Office on managing clinical negligence costs.This report is closely examined by the Committee with witnesses giving oral and written evidence.

The high cost of clinical negligence litigation

The report begins with a statement on the high and increasing cost of clinical negligence which sets the scene and tone for the rest of the report The Committee has raised concerns about the rising costs of clinical negligence on a number of previous occasions going back as far as 2002. The questions and answers of witnesses called by the Committee do reveal some very interesting and telling insights into the issues and the problems faced.

The annual cost of clinical negligence claims for trusts has quadrupled over the last ten years. It has risen from £0.4 billion in 2006-07 to £1.6 billion in 2016-2017.Annual spending is expected to double by 2020-21 to £3.2 billion. The estimated cost of settling future claims has risen from £51 billion in 2015-16 to £60 billion in 2016-2017. The Committee feels that the current action proposed by the Government to stem this growth is unlikely to be successful. Much more concerted, focussed action is needed such as the Department of Health working closely in concert with the Ministry of Justice and others across Government to develop strategies. The Government has been disappointingly slow and complacent in its response to dealing with the increasing clinical negligence cost issue.

The report states that almost 40 % of clinical negligence claims against trusts are related to a failure or delay diagnosing or treat a patient. Concern is expressed that NHS financial pressures and waiting lists and times may lead to more litigation.

When things go wrong in patient care and treatment then the NHS appears to be predominantly defensive. The NHS should adopt a more candid and transparent approach. The present approach adopted limits the NHS ability to learn lessons from the errors made.

Currently, only about 4% of people experiencing a harmful incident make a claim. The profiles of people who make legal claims differ a lot from those who suffer adverse events. Those aged over 65 and over experience more harmful incidents than people of working age. They are however, according to the report, much less likely to make a claim. More research is needed on the drivers of clinical negligence claims and what prompts people to sue or not. The NHS does not have a good understanding of why some people make a claim and others do not.

The time taken to resolve cases has increased by four months on average, from 300 to 426 days between 2010-11 and 2016-17.This can have a cost increase implication.

The report contains a lot of useful information and trends on patient safety and clinical negligence and how the NHS in England is responding. There are also important lessons for other countries in the report. A number of ethical and legal issues are raised such as access to justice, capping claimant solicitor costs, safe investigative spaces and transparency.

John Tingle

John Tingle is a regular contributor to the Bill of Health blog. I am a Lecturer in Law, Birmingham Law School, University of Birmingham, UK; and a Visiting Professor of Law, Loyola University Chicago, School of Law. I was a Visiting Scholar at Harvard Law School in November 2018 and formerly Associate Professor at Nottingham Law School, Nottingham Trent University in the UK. I have a fortnightly magazine column in the British Journal of Nursing where I focus on patient safety and the legal aspects of nursing and medicine. I have published over 500 articles and a number of leading texts in patient safety and nursing law. My current research interests are in global patient safety, policy and practice, particularly in African health care systems. My most recent publication is: "Global Patient-Safety Law Policy and Practice," edited by John Tingle, Clayton O'Neill, and Morgan Shimwell, Routledge 2018.

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