A good window on the activities of any organisation is its annual report and accounts. These show the challenges and opportunities facing the organisation. Valuable real-time information on the industry context that the organisation works in is provided, with trends analysis and so on.
NHS Resolution (2021) has recently published its annual report and accounts for 2020/21. Some important trends are analysed on several matters including patient safety and clinical negligence in the NHS. Information given includes costs of claims and the type of clinical specialties that are resulting in litigation. Information is also given on future initiatives.
Clinical negligence claims
In 2020/21 NHS Resolution received 12 629 clinical negligence claims and reported incidents, compared with 11 678 in 2019/20. This represents an increase of 951 (7.5%). The total included 973 new claims and incidents for the relatively new Clinical Negligence Scheme for General Practice (CNSGP) indemnity scheme that NHS Resolution manages. NHS Resolution manages several other clinical indemnity schemes and saw a decrease in claims overall on the other established clinical schemes.
The COVID-19 pandemic has brought major challenges to everyone's life and this fact is noted in the report. NHS Resolution, like all other parts of the NHS, has had to manage its workload and has supported the NHS response. The report notes that cases by solicitors acting for patients who are alleging clinical negligence may have been delayed by solicitors themselves facing operational challenges:
‘Very few claims or incident reports that we received in-year can be directly attributable to healthcare provided in response to the pandemic. We expect any claims arising from the pandemic to be made in future years, given that the average time lag between incident and notification of a (non-maternity) claim is 3.6 years.’
In an ideal world nurses and doctors would always practice carefully and no patients would ever be negligently harmed, nobody would need to sue, and there would be no damages paid. The aim of zero harm is laudable and appears as one of the seven strategic framework objectives in the World Health Organization (2021)Global Patient Safety Action Plan 2021–2030. It is all well and good to aim high, but nobody is infallible as health care is delivered by human beings to human beings and we all make mistakes. The best that we can hope to achieve is to effectively manage clinical risk and to develop effective patient safety cultures. A zero-harm tolerance aim is, however, a useful and positive mind set to adopt.
Costs of claims
There will always be a financial cost to the NHS of clinical negligence claims along with an incalculable emotional and physical cost to the injured patient and their family. It should be remembered that money is always a poor compensator for the loss of a faculty or amenity and even for the loss of a life.
In reading the report on costs it is important to balance these costs, and interests. Yes, the money paid out in compensation damages might have been used on frontline healthcare resources and may have paid for more nurses and doctors. At the same time, avoidably injured patients require compensation to meet their needs and changed circumstances and we must be careful to never compromise an injured patient's right to receive compensation for negligently caused harm.
Liabilities arising from claims under all the indemnity schemes decreased by £1.3 billion, from £84.1 billion to £82.8 billion (NHS Resolution, 2021). This, the report states, is the value of liabilities arising from incidents that occurred up to and including 31 March 2021, in relation to both claims received and claims that NHS Resolution think are likely to come. The reduction is largely due to a lower-than-expected number of incoming claims and a reduction in expected future claims inflation.
It should not be forgotten that we are talking here about billions of pounds being spent on clinical negligence and other claims. The importance of developing a sustained NHS patient safety culture is brought into sharp focus by this £82.8 billion financial provision. It is suggested that the total cost of resolving claims, including administration costs, will continue to rise. For several reasons detailed in the report this year NHS Resolution saw a reduction in costs, but we are still talking in terms of billions—by anyone's calculation this is a vast amount of money.
Settled claims
It is an interesting fact that most cases of clinical negligence do not proceed to a court trial. Going to court is seen as the very last resort:
‘We continued to settle claims wherever possible. We settled 15,674 clinical and non-clinical claims in 2020/21, 124 more than in 2019/20 when we settled 15,550 claims. Of these, 11,704 (74.7%) claims were settled without formal court proceedings, 3,914 (25%) with proceedings but without trial and 56 (0.3%) at trial. This compares to 2019/20 when 71.5% settled without proceedings, 27.9% with proceedings and 0.6% at trial.’
The report notes the increasing use of alternative dispute resolution methods and mediation in resolving clinical negligence cases. These can avoid the potential emotional distress on all the parties of going to a formal court trial and can save time and expense.
Clinical specialties claims rates
From a practical clinical perspective, one of the main values of the report is that it gives claim rates against specialties. From this it is possible to extract trends and remedial action can then be addressed to certain areas. This has been the case with obstetric claims, which dominate the cost of clinical negligence, amounting to 59% of the total estimated value. NHS Resolution has taken several specific actions to reduce the risk of harm and associated costs in this specialty.
‘The profile of claims specialties has remained fairly similar to the previous two financial years, with emergency medicine and orthopaedic surgery being the top two specialties by volume. We have continued to see an increase in cases relating to gynaecology, of which a large percentage are associated with vaginal mesh incidents.’
Patient safety
NHS Resolution has a key national role in advancing patient safety, education and training. It has been a part of the NHS since 1995 and during that time has amassed a great deal of experience in managing clinical negligence claims, claims data and patient safety. This claims data is used in several ways and can also inform the publication of reports in certain claims specialties. The online Faculty of Learning contains some excellent modules such as consent and learning from inquests. The report promotes a forthcoming NHS Resolution publication reviewing Never Events:
‘We undertook a review of all never event claims notified to us between 2014 and 2019. The research highlighted that the highest volume/value claims were for surgery: wrong site surgery, wrong implant/prosthesis; and retained foreign object post procedure. These findings will be used to produce a series of Did you know? leaflets to identify the volume, value and associated costs of these never event claims as well as any themes or trends to support clinicians and organisations with sharing the learning from never events.’
Responding to litigation
The Medical Defence Union (MDU) has recently produced guidance on responding to litigation (MDU, 2021). This has some helpful comments and observations, for example, many doctors who have gone through clinical litigation tell the MDU that coping with personal feelings is perhaps the most difficult aspect of a very stressful time. Advice is given on keeping matters in perspective, acknowledging emotions, maintaining objectivity and practical steps:
‘Solicitors’ letters are often written in an adversarial and aggressive style, often containing detailed references to legal procedures. They are at best disconcerting and at worst intimidating. Try to avoid taking the contents of any legal document too personally. The claimants' solicitors are simply doing their job in giving you notice that they are investigating a potential claim against you. There is no pleasant way to do it.’
The MDU also has other guidance in the same series on clinical negligence and litigation that will be of interest to health professionals besides doctors, as these give general background and explanation.
Greater cooperation
Helen Vernon, the Chief Executive of NHS Resolution, notes a welcome development in her introduction to the annual report:
‘A welcome development however was greater cooperation between the parties. Our efforts to keep cases out of court gained more traction as there was an increased willingness to resolve matters without formal court proceedings and to try new approaches such as remote mediations.’
This is a welcome development. Our tort-based justice system is adversarial in nature and as the MDU quote shows, legal proceedings can be intimidating for doctors and, I would add, for all concerned. A move towards greater cooperation between claimants and defendants and more informal methods of resolution of clinical negligence disputes is to be welcomed. Reforms to our clinical negligence system have been frequently suggested and are currently being actively considered by Government (Hyde, 2021).
Conclusion
We can see from the NHS Resolution annual report several important developing themes. The economic costs of clinical negligence litigation are substantial. It is also important to balance the perspective and factor in the sometimes forgotten emotional and physical costs on the injured patient claimant. The MDU (2021) also reminds us of the emotional toll that can be taken on the health professionals involved. They must be able to cope with their personal feelings when litigation arises.
It is clear that clinical negligence litigation is a major problem in the NHS. The costs of clinical negligence are in the billions and this very fact should be seen as a wake-up call and stark reminder of the urgent need to develop a sustainable NHS patient safety culture. Positive efforts have been and are being made in this regard, but the pace is too slow.