Trends in NHS Clinical Negligence Litigation Revealed in Latest NHS Resolution Annual Report and Accounts

By John Tingle

NHS Resolution is a major National Health Service (NHS) organisation concerned with patient safety, health quality, and litigation management in the NHS and provides essential infrastructure services. NHS Resolution has recently published its 2018/19 annual report and accounts, which contains valuable insights into the current state of clinical negligence litigation in the NHS in England. Several key themes and trends are identified in the report.

The report

The report is generally upbeat and positive and notes several achievements. NHS Resolution now operates on behalf of the Department of Health and Social Care (DHSC), a new clinical negligence indemnity scheme for general  medical practice, called the Clinical Negligence Scheme for General Practice (CNSGP). CNSGP is like the other major NHS clinical indemnity schemes used for hospitals and other health organisations, such as the Clinical Negligence Scheme for Trusts (CNST), which has been in operation for over 20 years. Developing the CNSGP has been a major organisational challenge for NHS Resolution, the scheme launched on 1^st April 2019.

Making more use of alternative dispute resolution and mediation

NHS Resolution state in their report that they continue to resolve increasing numbers of claims without resorting to litigation and very few cases proceed to trial. This, they state, minimises unnecessary delays and improves the experience for claimants, their families and healthcare staff. NHS Resolution have reduced the litigation rate from 32% in 2017/18 to 31% in 2018/19. They mediated 397 claims compared to 189 in 2017/18. More clinical negligence claims are being mediated than ever before, which represents a marked cultural change in how clinical negligence disputes are resolved in England. The report states:

Just under one third of claims end up in litigation with less than 1% going to a full trial (where most end in judgment in favour of the NHS (p37).

In 2018/19 NHS Resolution closed 16,393 clinical and non-clinical claims brought against the NHS compared to 16,701 in 2017/18. These figures include claims both with and without the payment of damages.

In 2018 NHS Resolution published work done by Behavioural Insights Team (BIT) to investigate a patient’s motivation to make claims for clinical negligence. This was an excellent report which provided several  behavioural insights into why patients complain and litigate.

Some facts and figures

NHS Resolution provide in their report a financial forecast of liabilities arising from claims under all NHS Resolution indemnity schemes. This has increased by £6.4 billion to a total of £83.4 billion, at current prices, at the end of this financial year.

In 2018/19 NHS Resolution received 10,678 new clinical negligence claims compared to 10,673 in 2017/18. They have seen an increase in the successful defence of claims brought and reductions in claimant legal costs. Damages paid to patients rose from £1,632 Million to £1,778 million, an increase of £146 million (9%). Compensation levels are rising, this year by over 13%. There have been some damage awards payments in excess of a value of £20 million. Legal costs are down overall, with a £24 million (5%) drop in claimant legal costs.

The top category of clinical claims received in 2018/19 is obstetrics, representing 50% of the total estimated value but only 10% of the volume of received claims according to the report.

The NHS Resolution 2018/19 annual report and accounts provides a valuable perspective on patient safety and clinical negligence litigation in the NHS.