Proportion Of Clinical Negligence Claims Reaching Settlement Before Court Proceedings Reaches Record High

This week, NHS Resolution has revealed that the proportion of clinical negligence claims that have settled without the need for formal Court proceedings has reached a record high.

NHS Resolution Annual report and accounts for 2020/21

The figures show that, in 2020/21, 74% of negligence claims were settled without Court proceedings, compared to 63% five years earlier. Ultimately, claims reaching a settlement without the need for formal proceedings tend to incur less time and costs.

NHS Resolution has produced an annual report in which it is confirmed that the amount paid out by the NHS for costs associated with clinical negligence claims fell by 10%.

It demonstrates that there has been greater cooperation between Claimants and Defendants, resulting in far more claims reaching settlement outside of the Court process.

Comment

This increase in settlements happening prior to costly proceedings is obviously very good news and shows a willingness on all sides to keep costs down wherever possible. But there is still a long way to go.

NHS Resolution confirms that there is still a spend of around £8bn annually for the cost of clinical negligence claims. In 2020/21, NHS Resolution received 12,629 clinical negligence claims and reported incidents.

The spending on claims has led to calls for many years for an overhaul of the system and in 2017, it was confirmed that the Government would set up a working group to develop a bespoke process for medical negligence claims and a grid of costs. The essential idea was to limit the amount of money spent on medical negligence litigation. This followed concerns that NHS compensation payments were unsustainable.

This work is ongoing and the Government has begun the process of considering a new way of doing things by implementing fixed recoverable costs, which would be mandatory for all claims worth up to £25,000 in compensation. In reality, this would mean that the level of investigations that can be undertaken would be limited by the number of costs fixed by the Government’s proposal.

But the focus has so far been on Claimant costs, without considering the impact of Defendant behaviour in protracting claims and incurring higher costs.

Of course, patients who are harmed as a result of negligent treatment should receive fair compensation and access to legal advice to pursue their claims.

The best way to control costs of claims is to improve patient safety, so that harm to patients, and the subsequent claims that follow, are reduced.

Whilst a review of the system may well be justified, the main concern is that the implementation of the current plans will result in changes that will limit access to justice for people with legitimate claims.

It is fair to say that the vast majority of medical negligence claims are complex, difficult and lengthy – and these factors can be true regardless of the level of compensation involved.

Medical negligence claims require input, not only from specialist legal teams but also from medical experts and they can be complicated and difficult to properly and thoroughly investigate. This invariably leads to such cases being costly, through no fault of the Claimant.

The approach of Defendants must also be scrutinised if a safe and fair system is to be developed. The importance of the support of Lord Falconer at this stage is clearly significant, but the campaign will need to continue. It remains to be seen how the plans for fixed recoverable costs will manifest over the coming months.