A positive side to the pandemic in clinical negligence litigation
The NHS Resolution’s Annual Report 2021 is now available. It includes a review of costs and working practice.
NHS Resolution actually represents eight different clinical negligence schemes ranging from the main clinical negligence scheme for trusts, largely defunct old liability schemes and then three separate schemes relating to GP negligence. It is therefore a large organisation with significant resources.
Reading the press would suggest that the world is full of claimants seeking compensation from the embattled NHS completely unnecessarily and on an increasing basis. That in fact is not the case. Another read of the press would indicate that the claimant lawyers’ costs are going through the roof and this is placing the NHS at risk. Again, this is not the case. Whilst the report is published (there is an obligation to do so), there is no press campaign from NHS Resolution dealing with the actual situation.
A review of NHS Resolution’s funding indicates that their income has gone up (there are more members). Some NHS legal costs have gone up – they have taken over new schemes and there must be a cost associated with that. Certainly their administration of clinical schemes has increased costs. By contrast claimant legal costs however have fallen by nearly 10%. NHS Resolution consider that the decrease is due to a lower number of high value claims, a lower rate of claims inflation and the lower average cost of claims. They are basing these assumptions on long term trends. In short there is a slow but consistent decrease in claimant legal costs
There is an increase in compensation given to individual claimants but that is due to a change in the assumed rate of return for the investment of damages used to calculate compensation for future losses which previously was undervaluing claims significantly. This has now been addressed.
Claimant legal costs are not however on the increase, quite the opposite.
Almost 65% of funds for compensation arises out of the significant obstetric claims. These are not large in number but substantial in compensation because in essence we are looking at brain damaged individuals or significantly damaged individuals who may live a normal or near normal life span but with fundamentally enormous physical needs. NHS Resolution indicates that the cost of settling claims reduced by £120 million which by any definition is a sizeable reduction.
Much of this is attributed to the working together of claimant and defendant solicitors during the pandemic to resolve matters. As we perhaps move from the pandemic and certainly the court system begins to open up to face to face hearings, there is of course a risk that the gains on both sides will be lost. In claims settled in 2020 almost 75% were settled without any court proceedings at all and less than 0.3% were settled at trial. There is a marked move to try and resolve matters without the need for court proceedings (which are expensive) and certainly without the need for trial. It is hoped that that spirit of trying to settle cases out of court will continue.
Clinical negligence practitioners on both sides have always had a great deal of cooperation and those of us who have been working in the area for some time have always tried to maintain good working relationships with our opponents whilst progressing our cases. The concept of early resolution of issues reducing costs will not come as a surprise to claimant lawyers who have been arguing that this is necessary for some time.
For most of my cases the single most important factor in dealing with costs is the attitude of the defendant to the claim. An early admission of fault (whether it is complete or not) and an early indication that harm has been caused often makes a significant difference. It clearly makes a difference to how the claim is run. It certainly makes a difference to how the claimant experiences the process.
An antagonistic opponent who does not accept fault (or only accepts it at such a late stage that the claimant has already had two years of distress) causes irreparable damage to the claimant’s trust in the system. The pandemic has perhaps forced perhaps more reluctant defendants to consider resolving matters better and more efficiently.
The NHS Resolution Annual Report 2021 supports what claimant lawyers have said for many years. If we cooperate, if we resolve what should be resolved and deal with what really should be in dispute, if there are early admissions in the face of clear negligence, then the cost of claims reduces, the distress to the claimant reduces and the process becomes less antagonistic, costly and wasteful.
There appears to have been a shift in attitude by NHS Resolution through the pandemic and out. That is not to say that there weren’t defendant lawyers who have always been cooperative and worked in order to resolve matters. It is to be hoped post-pandemic that that attitude remains because it is the way to reduce costs, provide proper early compensation to claimants and reduce the distress that has already been caused to somebody who has lost trust in one institution but does not need to lose trust in another.
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