Claimant costs fall as NHS targets greater use of mediation

Dilks: Customer satisfaction levels continue to rise

The LASPO reforms are continuing to reduce the level of legal costs being paid out in clinical negligence claims against the NHS, with a 5% drop over the past year, new figures have shown.

This was also against the background of a greater use of mediation, which NHS Resolution said it wanted to encourage.

Its annual report showed that, overall, the number of new claims received in the year to 31 March 2019, 10,678, was almost exactly the same as the previous 12 months, despite rising activity in the NHS. The number of non-clinical claims increased very slightly to 3,585.

Damages payments to claimants went up 14% to £1.4bn in the year, with a further £385m attributable to the higher discount rate.

NHS Resolution paid out £442m in claimant legal costs, down from £467m – “as the LASPO reforms take effect” – following last year’s £32m fall.

But its own spending on defence legal costs went up 8% to £140m “as we have focused our activity on early investigation and took action to deal with the change to the [discount rate]”.

The report said claimant costs in cases worth between £25,000 and £100,000 averaged £53,000 in 2018/19 (down from £60,000 the previous year). The average costs for cases worth up to £25,000 was £21,000.

NHS Resolution chair Ian Dilks said the Civil Justice Council should receive a report on fixed recoverable costs for clinical negligence claims this summer, which should lead to a consultation by the Department of Health and Social Care.

“As the National Audit Office study published in September 2017 concluded, in order to tackle the drivers of cost, any strategy will need to include legal reform. However, any changes are now unlikely to take effect before 2020.”

The annual report said NHS Resolution’s research said factors that went into people bringing a claim included a failure to provide an explanation for the incident, the lack of a meaningful apology, and the absence of a proper investigation or action to prevent a repetition.

But it said three-quarters of the cases examined took place before the introduction of the statutory duty of candour. “We would therefore hope that levels of candour have significantly improved in the interim.”

The report said there has been a “noticeable culture shift” towards mediation; the number of mediations more than doubled from 173 to 397, compared to 62 trials. Three-quarters of cases settled within 28 days of the mediation.

“There is more to do but the benefits of mediation and other forms of ADR are clear: reducing the stress and burden on patients, NHS staff and their families and giving them the time and space to explore what happened.”

Mr Dilks said NHS Resolution was now in the third year of its five-year strategy and there were signs that it was having an impact.

“Customer satisfaction levels continue to rise, our Early Notification scheme is beginning to deliver faster support and resolution to those impacted by serious incidents at childbirth, our maternity incentive scheme is improving adherence to recognised best practice in maternity safety and we are resolving record numbers of claims though alternative means such as mediation.

“At the same time, we are taking more robust action against those, thankfully rare, patients who exaggerate claims for personal gain at the expense of finite NHS funds and also against excessive legal fees.

“For the first time, this year we have seen exaggerated claims result in custodial sentences and a solicitor struck off.”

    Readers Comments

  • Andrew Dane says:

    No one has anything to lose by going to mediation and everything to gain.

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