The NHS Litigation Authority is increasing the cost of clinical negligence litigation by fighting more cases that it ultimately settles, according to a claimant lawyers’ group that has called for a thorough investigation of the way that claims are handled.
It was said at last week’s PI Futures conference in Liverpool that the much-delayed Department of Health consultation on introducing fixed recoverable costs in lower-value clinical negligence cases could be released next month.
Society of Clinical Injury Lawyers chairman Stephen Webber told the conference that a A freedom of information request revealed that of the 3,311 cases in which proceedings were issued in 2015-16, the NHSLA settled 76% after the claim had been issued – a figure that was absent from its annual report.
Mr Webber told delegates: “Basically, the position is that the NHSLA settles 76% of all cases that could have been settled pre-proceedings, post-proceedings – which is a pretty damning statistic.”
Mr Webber said that the post-issue settlement rate had increased in the last 12 months and expressed concern that the NHSLA’s year-long pilot to grow its in-house team would mean that liability would be admitted in fewer cases, increasing costs further. He indicated that it was generally when cases went to panel firms that settlement became more achievable.
Speaking afterwards, he added: “The question that has to be asked is why they [the NHSLA] are so poor at assessing the strengths and weaknesses of a case.”
The government, he said, was starting to look at the culture within the NHS of defending claims that should be settled earlier, but he pointed out that it will not form part of the consultation – and that the introduction of fixed fee would “no doubt mean that legitimate claims will not be brought”.
He also criticised the government for seeking to introduce further cost-cutting reforms before the full impact of LASPO, which removed legal aid for most clinical negligence claims, was known.
The government, he told delegates, was “looking to blame clinical negligence lawyers” for the fact that savings have not been made as quickly as it had wished.
Mr Webber said there remained “loads of unanswered questions” about how fixed recoverable costs would work, including who would decide the value of the claim, whether the claim would be based on settlement value, and how the reforms would control the behaviour of defendants.
He warned that it could have a variety of unintended and negative consequences, such as the removal of specialist lawyers from the area or practice, an increase in more commoditised practice, and the growth of satellite litigation.
A fall in the number of legitimate claims brought, he added, would also deprive the NHS of the opportunity to learn lessons where clinical treatment has fallen below acceptable standards.
The solution, he suggested, was a working party to look at everything across the board. “There is a huge list of drivers that affect clinical negligence costs – defendant behaviour, patient safety, experts’ fees, court fees, ATE premiums, hourly rates, delays in litigation, insurance solutions – all which need to be considered to come to a workable solution.”
He insisted that he was not opposed to an examination of claimant costs, but that all aspects of claims should be looked at by a panel from across the profession.
The real issue that needed to be looked at, he added, was why so many clinical mistakes were made in the first place. Reducing errors would reduce the number of claims and their associated costs, which would save money for the government and the NHS.
An NHSLA spokesman said: “We do not accept Mr Webber’s assertion that all cases settled after proceedings were commenced could have been resolved pre-litigation.
“Many clinical negligence claims are lodged a long time after the treatment in question and claimants’ lawyers commence proceedings to protect their clients’ limitation position. Also, settlements in cases involving patients under a legal disability have to be approved by a court, so proceedings must be commenced.
“It is wholly incorrect to suggest that either situation is the fault of NHSLA.”