Medical negligence and maternity claims data from NHS Resolution's 2022/23 annual report

The NHS’s defence organisation, NHS Resolution, have published their annual report and accounts for the year 2022 to 2023. NHS Resolution’s annual round up sets out the financial cost of harm from medical negligence looking back over the last year, as well as payments they expect to make from settlements involving lifelong PPO payments to severely brain injured babies, and patient safety incidents from which they expect to receive claims in the future.

The NHS defence team highlight their success in concluding 80% of claims without court proceedings being issued and estimate that they have saved £4.6 billion by resolving claims without payment of compensation, in what they describe as ‘one of their most productive years ever’. Meanwhile, maternity negligence claims involving severe brain injury to babies at birth continue to dominate the headline figures, accounting for 41% of the total £2.6 billion that was needed last year to compensate patients for negligently caused harm. Maternity claims accounted for 13% of all new clinical negligence claims.

Who are NHS Resolution?

NHS Resolution is the NHS’ defence organisation. NHS Resolution provides indemnity cover (insurance) and legal support for hospitals, GPs and other NHS organisations to defend and resolve claims against them by patients. They do this through various schemes including the Clinical Negligence Scheme for Trusts (CNST) and the Clinical Negligence Scheme for General Practice (CNSGP), which are funded by a combination of contributions from the healthcare organisations they represent, and government funding from the Department of Health and Social Care (DHSC).

NHS Resolution aims to reduce harm to patients by sharing learning from patient safety incidents and claims, and reduce the cost of delivering fair resolution. According to the 2022/23 annual report, much of NHS Resolution’s activity is aimed at reducing the cost of claims, including by increasingly finding ways to ‘settle’ medical negligence without paying compensation.

The unacceptable level of harm caused by maternity and neonatal negligence, and the cost of compensating injured children and families, has led to NHS Resolution prioritising maternity outcomes in its strategy. In addition to working to reduce compensation for these incidents, NHS Resolution are also working in other ways to support the government’s maternity safety ambition to halve the 2010 rates of stillbirths, neonatal deaths, maternal deaths and birth-related brain injuries by 2025. This includes collecting and sharing ENS scheme and other data on patient harm and claims, financially incentivising NHS trusts to comply with maternity standards to reduce their indemnity contributions through the Maternity Incentive Scheme (MIS), and supporting the government’s work on clinical litigation reform. NHS Resolution also publishes learning resources for healthcare professionals, such as on their duty of candour and the importance of saying sorry after something goes wrong.

Medical negligence claims statistics from NHS Resolution’s 2022/23 annual report

The total ‘cost of harm’ from clinical negligence claims as a result of incidents in 2022/23 covered by the main clinical negligence indemnity scheme for NHS trusts, CNST, was £6,278 million (around £6.27bn). The ‘cost of harm’ is more than the actual amount paid out for claims in a single year because it includes PPO payments which will be made in future years. NHS Resolution point out that the valuation of this and other financial sums involving provisions for the future have reduced compared with last year as a result of an increase in HM Treasury’s discount rate, which is used to calculate the present value of future payments.

There were 13,511 new clinical negligence claims and reported incidents, including:

• a 3.3% increase in the number of claims against hospital trusts (CNST) to 10,567;
• a 45% increase in GP negligence claims under the Clinical Negligence Scheme for General Practice (CNSGP) claims to 2,180, which was expected as the new scheme gets going.

There were fewer covid-related claims than expected in 2022/23, with 346 claims, mostly indirectly related to the pandemic, such as delays in treatment and diagnosis. 67% of covid-related clinical negligence claims were ‘settled’ without payment of compensation.

There were a small number of claims under NHS Resolution’s sodium valproate ‘gateway’ claims procedure.

Compensation settlements, trials and uncompensated cases

NHS Resolution refers to 13,499 claims being ‘settled’ out of which they say 6,611 (49%) were ‘settled without damages’, meaning the claimant did not receive compensation.

Payments for settlements and legal costs totalled £2,690.9 million (around £2.7 billion), of which £1,992 million (around £2bn) was paid as compensation to claimants (injured patients or bereaved families).

157 settlements (a 37.7% increase) involved PPOs, in which guaranteed annual payments for specialist care and other needs are paid throughout the severely injured claimant’s life. The number of PPOs which are being paid (from past settlements) increase every year. In 2018 payments totalling £211 million were made on 1,994 PPOs, compared with payments on 2,649 PPOs at a cost of £384 million in 2023. Ongoing payments on PPOs for patients whose injuries left them needing lifelong specialist care account for 41% of NHS Resolution’s financial future cost of claims provisions.

NHS Resolution say that 80% of clinical negligence claims settled without court proceedings, including 191 settlements from (301) resolution meetings, and 72% of the 229 mediated claims settling within 28 days of the mediation. They acknowledged that there are cases which cannot be resolved without the court’s involvement, such as where the court must approve a settlement for a child, or where the parties seek clarification of the law. Of the 56 claims that went all the way to trial, 18 (32%) resulted in a compensation award.

Maternity claims and the Early Notification Scheme (ENS)

Obstetrics (maternity) had the most claims, followed by emergency medicine, orthopaedic surgery and general surgery. The proportional decrease in surgery claims may relate to the reduction in elective (non-emergency) operations during the pandemic, whereas obstetrics and emergency care services continued.

Obstetric/maternity claims accounted for:

• 13% of the number of new clinical claims reported in 2022/23;
• 64% of notified clinical negligence claims by value;
• 63% of the total clinical negligence cost of harm;
• 41% of the total clinical negligence payments (£2.6 billion) for 2022/23;
• 65% of the total clinical negligence provision of £69,614 million (around £69bn) for cost of future claims.

204 families’ experiences of birth-related severe harm to their baby or mother were reported under the ENS or Early Notification Scheme. NHS Resolution’s annual report does not say how many of these families received full admissions of liability or have received meaningful financial help from early, substantial interim payments. Despite the defence organisation’s claims of the support that their early fact finding intervention provides for families in the aftermath of a maternity tragedy, the continued lack of transparency reawakens previously raised concerns about whether families are being advised or dissuaded from seeking their own independent advice from claimant (patient) specialist solicitors and, as a result, are not receiving the level of financial and specialist support that their severely injured child deserves.

NHS Resolution’s ENS strategy is increasingly focussed towards intervening after a life-changing birth injury, to gather data about the incident and gain an advantage in defending a future potential claim on behalf of the injured child. This can result in a blurring of boundaries for parents who receive the NHS’s defence team’s assessment of the events that have occurred  at a time when they are vulnerable, distressed and unaware of their child’s future needs and potential benefits from a claim. Parents should be advised that without representation or advice from a claimant specialist solicitor, their child’s claim for substantial, lifelong compensation may be affected during their discussions with the NHS’s legal advisors, whose job it is to defend, dissuade and reduce compensation in any claim that they could be entitled to make. NHS Resolution’s decisions about the standard of maternity care and cause of their child’s injury will inevitably be influenced by its primary purpose and role in defending or reducing the value of any potential claim. In our experience, in recent years, in around three quarters of the claims in which we secured substantial settlements for our clients, NHS Resolution initially denied liability for our client’s injury. Those families needed claimant-specialist expertise in the investigation of their claims to secure full liability admissions and substantial interim payments for the child.

The report refers to payments on ENS scheme cases having now reached £24.4 million but does not break down the figures to specify how the money has been spent (such as on one case settlement or many interim payments), how many families have benefited and whether those families have their own legal representation. 

Meanwhile, the number of NHS trusts that were fully compliant with the Maternity Incentive Scheme (MIS) safety actions dropped to 51.6% (63) compared to 74% in 2021/22.

At the end of the financial year, NHS Resolution was left with a cash surplus of £605.7 million. The defence organisation says that they are discussing with DHSC where the surplus money should be spent.

What next?

NHS Resolution will begin an evaluation of the Early Notification Scheme (ENS) later this year. The evaluation will focus on the impact of earlier investigation on clinical (patient) outcomes, legal admissions of liability and on the experiences of families and clinicians involved in claims. We await the publication of NHS Resolution’s review of the ENS scheme later in the year.

If you have suffered severe injury as a result of medical negligence or have been contacted by HSIB/HSSIB/MNSI/CQC or NHS Resolution, you can talk to a solicitor, free and confidentially, for advice about how to respond or make a claim by contacting us.