NHS to put stronger focus on learning from litigation claims

NHS: Potential for greater learning and improvement

A new best practice guide urging board-level attention at NHS trusts so they can learn more from clinical negligence cases has been issued in a bid to improve patient safety and reduce claims.

It also calls for clinicians and lawyers to work more closely together.

Produced by NHS Resolution and the Getting It Right First Time (GIRFT) programme, Learning from Litigation Claims says: “It is important that trusts recognise the direct link between clinical incidents, claims for compensation and their financial contribution to the Clinical Negligence Scheme for Trusts (CNST).

“Nowhere is the business case for investment in safety improvement clearer. With some trusts paying over £40m in yearly contributions and the annual cost representing around 2% of the NHS budget, it is clear that board-level attention on claims is essential and should be part of the effective governance of any organisation.”

It comes against the background of the NHS expecting the real cost of harm arising from clinical negligence claims in 2019/20 to be £8.3bn, against a cash cost of £2.3bn.

Amongst the guide’s recommendations are that trusts should make use of the “value-added services from NHS panel legal firms in seeking feedback from claims, as well as making the most of other educational offerings”.

Lawyers from several firms that act for the NHS contributed to the guide – Bevan Brittan, Capsticks, Browne Jacobson, DAC Beachcroft, Hill Dickinson and Kennedys – as well as a claimant solicitor, Madelene Holdsworth, the senior practice director for Slater & Gordon’s national injury practice.

GIRFT’s ongoing review meetings with providers across England have highlighted that clinicians and managers are often unaware of the claims against their department.

NHS Resolution said: “There is the potential for greater learning and improvement if clinicians can work alongside legal teams in the claims management process.”

Recommendations in the guide include appointing dedicated clinical staff to assist trust legal teams, with sessions incorporated into job plans; enabling regular discussion of claims with clinicians; making clinicians more aware of the claims process and ensuring legal teams are more visible to them; and ensuring clinical staff are aware when a claim has been initiated and are fully supported through the process.

The guide also stresses the importance of working in partnership with patients, families and carers, and involving them in investigations, to ensure openness.

In a statement of support, Sir Robert Francis QC, the chair of patient group Healthwatch, wrote: “I look forward to a day when all patients who have suffered unexpected and unwanted harmful outcomes will have the chance to be part of the learning from incidents.”

John Machin, who co-leads GIRFT’s litigation workstream with Professor Tim Briggs, said: “Historically, claims learning has not had the attention it needs to maximise the potential improvements for patient care. It is vital that claims learning is given the same importance as learning from clinical incidents, as it is such a rich resource to help improve patient safety.

“The triangulation of learning from claims, complaints, incidents and inquests must become a corner stone of our clinical governance and future clinical improvements.”

Helen Vernon, chief executive of NHS Resolution, added: “Claims for clinical negligence are a valuable source of learning and an opportunity for improvement which should not be lost.”

The GIRFT litigation workstream has previously collaborated with NHS Resolution to share claims data with trusts to help them identify high performance and targets for improvement.

The 2021 litigation data packs are now being issued to trusts and legal teams asked to complete GIRFT’s five-point action plan with the support of clinicians and panel law firms.

The GIRFT approach has been shown to make a difference in various areas, such as orthopaedic surgery, the cost of claims for which has halved to 5% of the total over the six years to 2019/20, reducing also the contributions trusts have to make to the CNST.

    Readers Comments

  • David Crawford says:

    There should also be an obligation on claimants’ lawyers to act more responsibly. How can it possibly have been right in ABC v. St Bart’s NHS Trust to have started out by claiming £2m and settled, 12 days before the trial was due to begin, for the £50,00 offered shortly after the meeting of experts?

    I also believe that there should be a higher threshold for clinical liability such as gross negligence, or perhaps recklessness. These claims take up an enormous amount in NHS resources in money and manpower which it can ill afford.

  • Helen Dolan says:

    Learning from litigation is an invaluable resource and whilst there have been discrete areas of improvement, there is so more to be done in terms of candour, cooperation and collaboration.

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