Latest NHS clinical negligence claims figures from NHS Resolution's Annual Report 2017/2018

NHS Resolution, the special health authority originally known as the NHS Litigation Authority and now rebranded to "resolve claims against the NHS fairly, share learning for improvement and preserve resources for patient care", has published its Annual Report and Accounts for 2017/2018.

Claims numbers did not increase in 2017-2018

The report shows that the number of clinical negligence claims reported by NHS organisations to NHS Resolution have not increased in the last year. In 2017/2018, 10,673 new claims were reported, compared with 10,686 in 2016/2017.

Damages paid out to patients who have suffered injury from medical negligence rose from £1,083 million to £1,632 million, an increase which reflects this year’s payments made for claims originating in previous years. £404 million of this year’s payments arose from the increase in compensation levels which followed the reduction in the personal injury discount rate – representing 18% of the total value of payments (damages and legal costs) of £2,227.5 million. The imminent enactment of the Civil Liability Bill is expected to be followed by an immediate increase in the discount rate with consequent lowering of damages awards in cases involving significant long-term future loss.

NHS Resolution and DHSC must not be complacent about negligently caused harm

The report revealed that NHS Resolution’s expenditure on claims and costs was less than expected. They are now working with the Department of Health and Social Care (DHSC) to decide how to use the resulting cash reserve to support the NHS. However, despite the future reduction in compensation levels attributable to the expected change to the discount rate, implementation of fixed recoverable costs for lower value claims and stabilisation of claims numbers generally, the annual cost of negligently caused harm to patients will continue to rise for decades to come, as the numbers of seriously injured patients entitled to lifelong annual payments of compensation by PPOs rises faster than the reduction from those whose lives come to an end.

Brain injuries to babies – the only way to reduce the cost of harm is to reduce the harm

The greatest number of notified claims by speciality were in A&E and orthopaedics but the greatest proportion of payments (48%) arose from the avoidable errors (with devastating consequences to babies) in obstetrics, which account for 10% of the total number of claims. The disproportionate levels of damages paid to brain-injured and permanently disabled children directly reflects the catastrophic nature of their injury, a lifetime of loss and the additional cost of meeting their lifelong care and other essential needs. In every one of these cases, the courts have accepted that their injury, consequent needs and financial loss were caused by negligent NHS treatment. Despite the emphasis on changing the legal environment, restricting lawyers’ costs and reducing claims, the only sustainable way to bring about a reduction in the ‘cost of harm’ is to address its true cause and reduce the shocking amount of avoidable, serious harm that is suffered by patients, particularly babies, as a result of negligence in maternity and neonatal care.

With inside knowledge of every one of the current and recent birth-related claims it is, therefore, hardly surprising that in their report, NHS Resolution confirm that their focus remains on maternity and how they can contribute to the delivery of safe maternity care.

The report refers to NHS Resolution’s contribution to various maternity-safety themed initiatives, including the development of Rapid Resolution and Redress (RRR), their five year review of cerebral palsy cases and the valuable work carried out by GIRFT.

In their role as claims insurer/indemnifier to NHS trusts they have launched a new scheme to incentivise delivery of best practice in maternity and neonatal services by rewarding trusts which take their recommended actions to improve maternity patient safety.

Early notification of babies born with potentially serious brain injury – 500 cases since April 2017

One of the rewarded actions is notification within 30 days of all maternity incidents resulting in potentially severe brain injury, in compliance with NHS Resolution’s Early Notification Scheme, which they launched in April 2017 as ‘a flagship for their strategic approach’. In what is described as a ‘test-bed’ for NHS Resolution’s proposed early intervention in brain damaged baby cases for RRR, their stated aim for early notification of potential cases of birth-related brain injury is to enable them to investigate liability proactively, to encourage trusts to be more open (including with the family) about incidents and to maximise learning opportunities, whilst building a database from which to research the cause of these incidents. They hope that their early intervention will ‘break down any perception of defensiveness on the part of the NHS’ so that litigation is not seen as a barrier to safety.

Whilst in general, claims resolution times remain one of the performance targets which NHS Resolution has failed to meet, the report states that early notification has brought about reductions in the time from serious maternity incidents occurring to resolution. In six cases, liability has been resolved with, they say, the child’s family being advised honestly about the care that was provided and that liability will not be contested. Our experience, to date, from acting for families of brain-injured babies whose care was investigated under the Early Notification Scheme, is that whilst NHS Resolution’s intervention has taken place sooner and admissions of liability occasionally can now take months rather than years, further work still needs to be done to ensure that appropriate support is available to help these families come to terms with what has happened and that they receive immediate and adequate funds to provide for the specialist needs of their brain-injured baby.

Of greatest concern, the report reveals that since April 2017, the Early Notification Scheme has already received 500 eligible cases of potentially severe brain injury, of which NHS Resolution and their lawyers are actively investigating 100. Given the lifelong, devastating impact of birth-related brain injury to these babies and their families, the focus of all within the DHSC and the NHS must be to urgently reduce the scale and incidence of avoidable harm. 

If you are caring for a child with cerebral palsy, whose injury was caused by medical negligence then contact a member of our specialist team, to discuss a possible claim, by email cerebralpalsy@boyesturner.com.