The enormous human and financial costs of clinical negligence are highlighted today in a National Audit Office report. The estimated net present value of claims outstanding against the NHS alleging clinical negligence has risen to £2.6 billion, plus an estimated liability of a further £1.3 billion where negligent episodes are likely to have occurred, but where claims have not yet been received. On average claims take over five years to resolve and there are 23,000 claims outstanding.
The report, presented to Parliament today by NAO head Sir John Bourn, identifies a number of areas where the four bodies involved (the Department of Health, the NHS Litigation Authority, the Lord Chancellor’s Department and the Legal Services Commission) have made improvements but could make further changes.
Key findings in the report are:
- The number and value of claims continues to rise. At March 2000, there were 23,000 claims outstanding, with a net present value of £2.6 billion. Claims expected to arise from incidents that may have occurred but not been reported are valued at a further £1.3 billion.
- On average, claims take a long time to settle. For claims closed in 1999-2000 with settlement costs above £10,000 (excluding those for cerebral palsy and brain damage injuries), the estimated average time taken to pay damages was five and a half years after receipt of the claim. We estimate that in eight per cent of such cases it took 10 years or more. Claims for cerebral palsy and brain damage injuries take longer because of the time required for the extent of any damage to become apparent.
- Nearly half of the claims settled in 1999-2000 cost more in legal and other costs than the settlement itself. For settlements up to £50,000, the costs of reaching the settlement are greater than damages awarded in over 65 per cent of cases.
- There are indications that initiatives taken by the Legal Services Commission and the NHS Litigation Authority to improve the quality of solicitors advising on bringing and defending clinical negligence claims are having a positive impact. The success rate for claims with legal aid backing pursued beyond the initial investigation rose between 1996-97 and 1999-2000; and the number of claims closed (settled or dropped) in the main negligence scheme increased sharply between 1997-98 and 1999-2000.
The report identifies a number of areas where the four bodies involved could build on the recent improvements:
- dealing with outstanding claims: the Litigation Authority should draw up an action plan with quantified targets and performance measures to address claims that have been open for more than five years. The Legal Services Commission should, similarly, monitor the progress of cases over five years old, and take steps to bring them to a timely conclusion. The Litigation Authority and the Legal Services Commission should hold regular meetings to consider general concerns in concluding cases.
- patients’ access to remedies: the Department of Health, Lord Chancellor’s Department and the Legal Services Commission should further investigate alternative ways of satisfactorily resolving small and medium sized claims, for example through the offering of the wider range of non-financial remedies that patients say they want, setting up regional panels and offering mediation where appropriate.
- managing patients’ claims: the Litigation Authority and the Legal Services Commission should each develop quantified measures of performance (for example outcome compared with cost and time estimates) for the solicitors they instruct or fund and incorporate these into selection procedures, contracts and monitoring arrangements.
The Department of Health, the Lord Chancellor’s Department and the Legal Services Commission have accepted these recommendations.