A Tale of Two BBC Articles

This week has been a rollercoaster week for Claimant clinical negligence lawyers. On Tuesday 21 January 2020, BBC news reported that the NHS faced a huge clinical negligence legal fees bills amounting to £4.3 billion, and yet 48 hours later the BBC also reported that East Kent NHS Foundation Trust is not learning from mistakes and there have been at least 7 preventable infant deaths may have occurred since 2016. Evidently a lot can change in 48 hours!

With respect to the former article, for those of us who see the same reporting (albeit not usually from the BBC) year on year, you would have been forgiven in thinking that NHS Resolution (NHSR) had published their annual report early! Not so. What is of concern to this clinical negligence solicitor, is the lack of analysis behind the BBC’s article. Even a brief review of NHSR’s annual report would have shown:

1. there has been a reduction in the number of claims proceeding to formal litigation[1];
2. there has been a drop in Claimant legal costs (£24 million[2]) but a rise in Defence costs[3];
3. there has been a rise in NHSR administration costs and expenditure[4];
4. that 70% of the costs associated with the Clinical Negligence Scheme for Trusts relate to maternity costs[5] and in fact contributions have decreased[6];
5. 50% of NHS’s litigation costs relate to obstetrics and yet these amount to only 10% of the volume of claims received[7]; and,
6. 44% of claims reported to NHSR settle without damages payment[8].

Leaving the statistics aside for one second, what is also interesting is that NHSR are now reviewing the drivers behind litigation. Whilst legal and mainstream press like to focus on the monetary costs to the NHS (it seems that “large” numbers are in vogue these days), one has to remember there is a very human tragedy behind those numbers and this, in many respects, is borne out by the reported factors that influence the cost and number of claims to the NHS:

2/3 of respondents felt that no explanation was given by the Trust when something went wrong, less than 1/3 felt that received an apology and of those that did only a minority rated the apology highly, 71% felt that the healthcare provider did not take any steps to investigate the incident and only 6% felt that lessons had been learned so that the same thing would not happen again.[9]

NHSR’s own research suggests that if complaints were handled better by the NHS and lessons learned, then many claims may not land on the desk of individuals like me. The East Kent NHS Foundation Trust article from the BBC is a case in point. Internal investigations were completed and, seemingly, concerns had been raised for many years and yet similar mistakes continued to occur. Where else but litigation are families meant to turn if the internal mechanisms designed to give them answers and engender change are broken?

Whilst better internal investigations and learning from mistakes can only good thing, what is also, sadly, a common experience of this clinical negligence solicitor is that even when a Trust prepares a critical internal investigation report, early admissions of liability are either not forthcoming or are only partial i.e. yes there was a breach of duty but it caused very little, if any, harm to that patient. Such an attitude has the knock-on effect of increasing litigation costs as the Claimant is then required to fully investigate matters by obtaining expert evidence etc.

I doubt I am the only Claimant solicitor out there who feels that the Pre-Action Protocol process is broken, or who is concerned that there are, seemingly, no consequences for Defendants who half-heartedly engage with the Pre-Action process, or who drag out admissions of liability notwithstanding critical internal investigations. Seemingly very little is done to analyse the behaviour of Defendants whereas, as Claimant solicitors, we are consistently scrutinised and seemingly blamed for the NHS’s clinical negligence bill. So, when journalists are reporting on the exorbitant costs associated with clinical negligence claims in one breath, and then the failings of NHS Trusts to learn from mistakes in the other, this Claimant solicitor would ask them to consider whether the latter may in fact be at least partially responsible for the former.

[1] NHS Resolution, Annual report and accounts 2018/19, page 12

[2] NHS Resolution, Annual report and accounts 2018/19, page 39

[3] NHS Resolution, Annual report and accounts 2018/19, page 17

[4] NHS Resolution, Annual report and accounts 2018/19, page 17

[5] NHS Resolution, Annual report and accounts 2018/19, page 12

[6] NHS Resolution, Annual report and accounts 2018/19, page 35

[7] NHS Resolution, Annual report and accounts 2018/19, page 43

[8] NHS Resolution, Annual report and accounts 2018/19, page 18

[9] NHS Resolution, Annual report and accounts 2018/19, page 52