The NHSLA is the body which indemnifies NHS Trusts in respect of claims bought against the NHS and NHS employees. Whilst the NHSLA indemnifies claims against the NHS by its own employees, the report covers only negligence claims against the NHS.
Annual reports are published addressing the prevalence of clinical negligence claims and complaints against the NHS and the cost of such claims to the NHS – both in relation to the sums paid to patients/Claimants and the sums paid to solicitors.
Increase in the number of claims – the impact of new non-specialist solicitors
The NHSLA reports an increase in the number of clinical negligence claims intimated against the NHS during the year which it attributes to an increase in the number of solicitors practicing within the clinical negligence field.
We agree that the increase in non-specialist solicitors entering the clinical negligence field from personal injury is a worrying development. This is largely due to changes to fast track personal injury litigation, making such work unattractive and unprofitable for some firms.
Clinical negligence is complex and specialist area which requires solicitors with specific expertise in clinical negligence litigation as distinct from personal injury. Solicitors who have experience largely of personal injury fast track litigation will not necessarily have the knowledge or expertise to properly investigate and pursue clinical negligence claims.
It is important that Claimants are able to identify suitable expert solicitors. Look carefully at the experience of your proposed solicitor and check that the firm are approved AvMA or Law Society panel members.
There is a concern that non-specialist solicitors dealing with clinical negligence claims could lead both to unmeritorious claims being bought and also to meritorious claims failing or being undervalued due to lack of expertise.
The NHSLA report sets out what they see as their main successes for the year. These are listed as;
- Resolving claims where the care was not negligent resulting in almost half (44%) of clinical claims being settled and resolved without the payment of damages, saving the NHS over £1.3 billion;
- Robustly challenging excessive costs charged by some claimant solicitors saving the NHS more than £75m;
- Launching an extranet web portal that gives members direct access to track their claims in real time, providing online information and learning resources to support them in identifying areas where claims can be reduced, thereby improving patient and staff safety;
- Reducing administration costs for dealing with claims and ensuring claims are dealt with quickly; and
- Reducing the waiting time for National Clinical Assessment Service (NCAS) assessments from sometimes over one year to 3-4 months and helping to resolve concerns about the professional practice of doctors, dentists, and pharmacists during a time when NCAS receive more referrals than ever before.
The NHSLA are certainly taking a more robust position in relation to claims but this is not always well targeted as claimed. We are continuing to find that the NHSLA delays in dealing with claims (often resulting in litigation to get a satisfactory response) or rejecting meritorious claims at pre-action stages, only to later be admitted and settled after litigation. This is disappointing particularly with cases which are perfectly capable of settlement without litigation. It results in delayed outcome for Claimants, increased stress for Claimants and increased legal costs.
Costs are always a contentious issue. The NHSLA are fighting claims for costs at the end of successful litigation and sadly this often only results in an increase in costs where Claimants have to commence the court process to recover costs. The best way for legal costs to be kept as low as possible is for the NHSLA to deal with cases more efficiently and to take a considered, earlier view on settling meritorious cases. Dealing with the NHSLA continues to involve significant delay and, as above, legal proceedings are often commenced (at considerable cost) simply to get an adequate response. Claimants have a right to have their cases run properly by specialist solicitors and to bring meritorious claims. Perhaps the NHSLA need to focus less on fighting costs claimed in successful cases and more on responding to claims and running cases in a way that allows Claimants to bring their case at less cost and delay.
To see the full report, please click on the link below: