The recent annual report of NHS Resolution for 2016/17 gives an interesting picture of the current clinical negligence litigation market.
The number of negligence claims received by the NHS in 2016/17 (£10,686) fell by 2.5%, the third year in a row when the number of claims had fallen. This apparent fall will be in part at least a factor of the surge in claims in 2013/14 prior to the change in funding arrangements (as a result of which success fees in successful claims under conditional fee agreements ceased to be recoverable from the NHS).
Orthopaedic surgery gave rise to the largest number of claims for clinical negligence (13%) although inevitably in terms of value obstetrics came out on top, accounting for 10% of clinical claims and 50% of the total value of new claims reported (orthopaedics accounted for only 5%). Following close behind orthopaedics came (in order) casualty/A&E, obstetrics, general surgery, gynaecology, general medicine, urology, radiology, psychiatry/mental health and finally ophthalmology, although unspecified ‘others’ account for 34% of all received claims.
While total damages paid out during the year were just under £1.1 billion, a rise of 14% over the previous year, legal costs paid out to claimant lawyers was £498 million, up 19% on the previous year. In contrast the NHS spent £126 million on defendant lawyers but claims are dealt with in-house until proceedings are commenced so that the figures are not comparable. The payments made are in relation to claims often first notified many years earlier.
In 2016/17, of the claims resolved that year, 67.8% of claims were resolved without formal court proceedings and a majority of these claims (55%) were resolved without payment of damages. Proceedings were commenced in just under one third of claims, and of these damages were paid in 80% of claims. Only fewer than 1% of these claims went to a full trial and at trial 60% ended in judgment in favour of the NHS. Therefore of those claims (about one third) where early negotiations were unsuccessful in resolving them and it was necessary for the claimant to issue proceedings, the vast majority (80%) were settled successfully for the claimant without a trial, but when the remainder went to trial only about 40% were successful.
NHS Resolution (the former NHS Litigation Authority, renamed in April 2017) claims that it intends “to improve the resolution of claims, striking the balance of avoiding unnecessary court costs whilst continuing to defend claims where there was no negligence and challenging inappropriate legal costs where we encounter them.” It is to be hoped that this will result in the earlier admission of liability in more cases which are not defendable, and a more cooperative approach to resolving the value of claims, and a more effective use of mediation.
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