NHS Resolution's 2023/24 Annual Report - where is the data on EN scheme interim payments to patients?

The NHS’s defence organisation, NHS Resolution have published their annual report and accounts for 2023 to 2024.  The report sets out headline figures relating to the number of medical negligence claims received and the compensation that NHS Resolution has paid, or expects to pay to patients who have been injured by medical negligence in order to settle those claims.

NHS Resolution’s 2023/24 report highlights the defence organisation’s efforts to reduce injured patients’ claims and compensation, particularly via its Early Notification (EN) scheme which takes a pro-active approach to early investigation and defensive preparation for potential claims arising from devastating birth-injury. These and other maternity birth injury claims accounted for nearly 57% of the total financial value of clinical negligence compensation claims, and for 62% of NHS Resolution’s £58.4bn provision for future clinical negligence compensation payments, which include ongoing annual PPO payments for injured babies’ lifelong care.

The figures are shocking, particularly for those of us who work so closely with families of children with catastrophic brain injury and life-changing disability and understand the profound impact that these avoidable birth injuries have on the children and their families’ lives. But whilst the financial provision that must be made to compensate these negligent, devastating and avoidable birth injuries will inevitably dominate media headlines, it is vital that we remember that the unacceptable scale of harm and lifelong hardship that these compensation figures represent will not be reduced by the cost savings that come from defensive investigations or deterring families from making claims. The only way to prevent these injuries is to radically and fearlessly take urgent action to improve standards of NHS maternity care. 

Statistics from NHS Resolution’s Annual Report on medical negligence claims in 2023/2024

NHS Resolution’s annual report says that in the year from 1st April 2023 to 31st March 2024:

• The estimated cost of claims from patient safety incidents or ‘annual cost of harm’ across all of NHS Resolution’s indemnity schemes was £5.1bn, of which £4.7bn related to its main Clinical Negligence Scheme for Trusts (CNST).  
• 10,834 clinical negligence claims and incidents which could potentially lead to claims were reported to CNST.
• 2,382 GP negligence claims and incidents relating to primary care were reported to CNSGP.
• Just over £2.8bn was paid out across all their clinical negligence indemnity schemes, of which £2.1bn was compensation to patients.  

NHS Resolution’s provision at 31 March 2024 for future claims was £58,480m. The provision is an estimated figure, based on His Majesty’s Treasury’s discount rate, which determines the amount of money that would be needed to settle all existing liabilities from claims arising from incidents up to the end of the NHS Resolution’s 2023/24 financial year, if they had to be paid now. This figure takes into account future payments in cerebral palsy birth injury and other high-value case settlements in which PPOs provide payments to the injured claimant annually for the rest of their life. Over the last five years, NHS Resolution’s liability for ongoing PPOs from existing settlements to still living, severely injured claimants has increased from 2,192 PPOs at a cost of £248 million paid out in a year, to 2,757 ongoing PPOs with payments totalling £437m per year.   

How were medical negligence claims resolved in 2023/24?

NHS Resolution’s figures show that during 2023/24:

• 81% of clinical negligence claims were resolved (settled or concluded with or without compensation) without litigation (court proceedings);
• 7,260 ( 52%) claims resulted in a payment of compensation to patients;
• 50 claims (including unspecified proportions of clinical and non-clinical claims against the NHS) went to trial, of which 17 (34%) resulted in the court ordering compensation;
• 195 claims went to mediation, out of which 79% settled on or within 28 days after the mediation day;  
• 259 claims were discussed in resolution meetings, of which 105 were resolved;
• 45 claims were discussed in stock take meetings, resulting in 39 cases being resolved without court proceedings and six cases being resolved after proceedings were issued.

What types of medical negligence led to clinical negligence claims in 2023/24?

NHS Resolution’s report identified that 50% of successfully resolved clinical negligence claims were low value claims for compensation ranging between £1,501 and £25,000.

The specialist areas of medicine (excluding GP care) which had most clinical negligence claims were:

• emergency medicine - 13.3%;
• maternity (obstetrics)  - nearly 13% (1.2% EN scheme eligible claims, 11.6% outside the EN scheme);
• orthopaedic surgery - 10.8%;
• general surgery - 5.9%.

Other medical specialisms giving rise to high numbers of claims were gynaecology, radiology and general medicine.

The specialist areas of medicine (excluding GP care) which gave rise to the highest value clinical negligence claims were:

• maternity (obstetrics) -  20% EN scheme eligible, 36.7% outside the EN scheme;
• emergency medicine - 7.1%;
• neonatology - 4.2%.

Other medical specialisms giving rise to high value claims included orthopaedic surgery and paediatrics (children’s medical care).

Maternity or birth injury claims accounted for:

• 49% of the total clinical negligence ‘cost of harm’ for the year;
• 13% of clinical negligence claims by volume (excluding claims against GPs);
• 41% of the total clinical negligence payments;
• 57% of the total financial value of notified claims (including incidents reported to NHS Resolution which might lead to a claim);
• 62% of the total clinical negligence provision for expected payments in future.

In 2023/24, NHS Resolution received 23 claims via the sodium valproate gateway. NHS Resolution also received medical negligence claims relating to sodium valproate injury via claimants’ solicitors in the usual way.

How many families with brain-injured babies received interim payments under the EN scheme?

NHS Resolution’s Early Notification (EN) scheme was launched in 2017 to support the government’s National Maternity Safety Ambition to halve the number of maternal and neonatal deaths and the number of babies who suffer brain injuries at birth by 2025. The EN scheme requires all NHS trusts which provide maternity services to report to NHS Resolution  every time a baby is born with a serious brain injury. Following an MNSI investigation, NHS Resolution’s legal team may then decide to carry out their own full liability investigation to enable them to defend any potential medical negligence birth injury claim. Until recently, NHS Resolution carried out these investigations without the injured child’s family’s knowledge or prior consent. Following recent changes, NHS Resolution must now seek the parents’ consent before proceeding with a full liability investigation into the birth of any baby who was born after 1st October 2023.

NHS Resolution have repeatedly inferred that their early intervention benefits families with brain-injured babies by providing early practical and financial support via interim payments. Over time, many claimant specialist lawyers have become increasingly concerned that the EN scheme has been used by the NHS’s defence team to gather evidence from families at a vulnerable time, before they have independent claimant-specialist legal advice and representation, whilst potentially delaying or dissuading families from seeking legal advice whilst NHS Resolution uses their evidence to prepare to defend their claim.

Despite NHS Resolution’s claims that that Early Notification is making a difference by providing earlier support to families, their annual report provides no data relating to how many families have received financial support or earlier interim payments as a direct result of the EN scheme, compared with those who instructed independent solicitors to pursue their claim in the usual way. The report also admits that there is still ‘relatively little settled claims experience to fully quantify the impact of the scheme’.  

NHS Resolution say that they are now in the process of evaluating their Early Notification scheme. We await, with interest, the results of the evaluation.

If your child has cerebral palsy or neurological disability as a result of medical negligence or you have been contacted by HSSIB/MNSI 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.