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New high for NHS claims settling before proceedings

Vernon: More collaborative approach

The percentage of clinical claims against the NHS being resolved before issue has continued to climb to new levels, although claimant legal costs have also increased over the past year.

NHS Resolution’s (NHSR) annual report, for the year to 31 March 2020, showed that 71% of clinical claims concluded without formal proceedings, up from 69% the year before and 64% a decade ago, although the organisation just missed its target on this.

In 2019/20, NHSR received 11,682 new clinical negligence claims and reported incidents, a 9.3% increase; 401 of the 998 new claims and incidents came from the new indemnity scheme for general practice.

It said this rise was against a backdrop of increased NHS activity and increased numbers of incidents being reported, such as those arising from mesh implants. Claims for serious injuries at birth have shown small declines for three successive years and are now at their lowest level for over a decade.

The number of new non-clinical claims, typically employers’ and public liability matters, rose 4.4% to 3,744.

The annual ‘cost of harm’ – incidents NHSR expects to turn into claims – arising from clinical activity during 2019/20 was £8.3bn, down £500m from last year, while provision for the liabilities arising from claims for all financial years increased by £700m to £84bn.

Maternity claims remain the highest value area, representing 50% of the total value of all clinical negligence claims received and 69% of the incurred cost of harm.

NHSR settled 15,550 claims in the year – it paid no damages in 37% of those settled without proceedings and 5% in those where proceedings began. Overall, the proportion of claims settling without damages increased slightly.

It failed to meet a new target measuring the number of cases where it reversed an earlier repudiation of a claim.

Damages paid to clinical claimants fell 5% to £1.7bn, but claimants’ legal costs rose £55m (12%) to £498m. The NHS’s legal costs rose 3% to £144m.

NHSR paid out an average of £20,332 in claimant costs on claims worth up to £100,000, the fourth year the figure has declined, from a high of £21,995 in 2015/16. But the average level of damages has fallen far more significantly in that time, from £59,251 to £48,592.

Some 427 cases went to mediation, compared to 397 the year before, of which 81% settled on the day of the mediation or within 28 days.

Chief executive Helen Vernon said: “We have seen a more collaborative approach to investigating claims for compensation across the legal market. Litigation has reduced for the fourth year running and mediation is now seen as mainstream.

“The pandemic has placed enormous pressure on our colleagues across the NHS and it has been encouraging to see remote mediations taking place so that cases can continue to be resolved without added stress to patients and those who care for them.

“Together with the delivery of a new indemnity scheme, which has provided much needed assurance to those delivering healthcare during the pandemic, there is much to build on so we can see longer term benefits from these changes.”