Why did the total value of NHS clinical negligence claims fall in 2019/2020?
NHS Resolution’s annual report states that the total value of clinical negligence payments for 2019/20 had fallen from £2,359.9m in 2018/19 to £2,324.2m in 2019/20. Though a relatively small decrease of 1.5%, we would expect the total value of clinical negligence payments to increase year on year.
So, what caused this decrease? Was it improvements in patient care resulting in fewer claims being brought; improved case handling by NHS Resolution resulting in fewer costs being incurred; or did claimants recover less damages for their injuries?
Improvements in patient safety?
Despite the reduction in clinical negligence payments, the data confirms that the number of new clinical negligence claims and reported incidents in 2019/20 actually increased from 10,684 in 2018/19 to 11,682 in 2019/20 (9.3%). This was in part as a result of the new CNSGP scheme, which provides indemnity for GP’s for incidents arising after 1 April 2019. However even excluding the CNSGP claims, it is clear that claims and reported incidents in 2019/20 increased by approximately 6%.
The report cites the fact that the NHS is simply providing services to more patients, which has led to an increased demand on its services and therefore an increase in claims. This suggests whilst there may have been improvements in care in some areas, there are still areas that require significant improvements.
One area that requires particular attention is gynaecology. The reports cites an increase of 145% in gynaecology reported incidents in 2019/20, which it largely attributes to the vaginal mesh claims. The report refers to the continued success of the Early Notification Scheme and the Maternity Incentive Scheme (MIS). However as a result of the coronavirus pandemic, NHS Resolution has halted the majority of reporting requirements relating to the MIS while still seeking compliance.
The report also highlights the success of the Maternity Transformation Programme and the verification process which has led to a number of trust certificates being queried and, in a small number of cases, revoked and referred to NHS England, NHS Improvement and the Care Quality Commission to consider further regulatory action.
Clearly scandals in relation to historic NHS treatment such as the vaginal mesh litigation and the maternity scandal at Shrewsbury and Telford Hospital NHS Trust will increase the number of potential claims and reported incidents in any given year. On 21 July 2020 the Guardian reported that investigations had identified a further 496 cases involving maternity care at Shrewsbury and Telford Hospital NHS Trust since 2000 involving stillbirths, neonatal deaths and baby brain injury. The total number of cases identified is now 1,862. These cases are being investigated as part of the Independent Maternity Review being conducted by Donna Ockenden, a well-respected healthcare leader. She hopes to publish her interim findings later this year.
The hope is that by identifying such cases and investigating what went wrong, the NHS will be able to make improvements and to avoid such incidents occurring in the future. However, in the follow up review of maternity services at Shrewsbury and Telford Hospital NHS Trust that was published earlier this month, the reviewers remained critical of the culture at the Trust. They found that there was a “culture of defensiveness, denial and/or lack of openness that existed at the time in maternity services.”
It remains to be seen whether the Maternity Incentive Scheme, Maternity Transformation Programme and findings of the Independent Maternity Review will lead to significant improvement in maternity care and therefore a reduction in claims going forward.
Improved case handling by NHS Resolution?
The report sets out the success of NHS Resolution’s strategy to increase mediation and to avoid incurring the costs of litigation. It highlights the importance of this strategy going forward in order to minimise costs incurred by clinical negligence claims. However, on scrutinising the data the reality is that in 2019/20 NHS Resolution failed to meet their own targets for responding to Letters of Claim within the agreed timeframe. They have also failed to meet their own target for the volume of cases repudiated but then a payment was made.
The data confirms that in 2019/20 there was an increase of 1% in cases where damages were paid out by NHS Resolution, and a corresponding reduction of 1% in cases that ceased without damages being paid. The data shows that there was an increase of 0.8% in cases settling prior to proceedings being issued in 2019/20.
The data confirms that both NHS legal costs and claimant’s legal costs have in fact increased in 2019/20 compared to the previous year.
A decrease in damages payments?
The report confirms that the main reason for the reduction in clinical negligence payments is a result of the change to the personal injury discount rate (PIDR), which on 5 August 2019 changed from 0.75% to 0.25%. This single change has saved NHS Resolution £114.6 million in 2019/20 compared to the previous year means that claimant’s have received £114.6 million less in damages than the previous year.
Given this significant reduction, we may have expected to see a greater decrease in the overall clinical negligence payments than the £35.7 million that has been reported. The reason that there has not been a more significant overall decrease is that damages paid to claimants (excluding those impacted by the change to PIDR), NHS legal costs and claimant’s legal costs have all increased in 2019/20.
At Clarke Willmott we are ambassadors for patient safety and we welcome any NHS initiative that aims to improve patient safety and reduce the number of incidents which give rise to potential claims. We hope that following the Maternity Incentive Scheme, Maternity Transformation Programme and findings of the Independent Maternity Review there will be significant improvements in maternity care. We also welcome proposals for increased openness in dealing with all potential claims and a reduction in litigated claims. However, our priority is to the people who have been injured as a result of failings by the healthcare system.
We have seen, over the past few months, the phenomenal effort which has been made by the NHS to keep us all safe during the coronavirus pandemic. However, it is clear from the data in the 2019/20 NHS Resolution Annual Report that in terms of general patient safety, there is still significant room for improvement.
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If you or a member of your family have concerns about medical treatment which you have received, please contact our Medical Negligence team on 0800 316 8892.
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