Managing the costs of clinical negligence in hospital trusts Contents

2Patient experience

Time taken to resolve claims

15.Handling claims requires a balance between paying appropriate damages for valid claims quickly and efficiently, while defending the NHS from claims which are without merit, or where the damages sought are not proportionate. Between 2010–11 and 2016–17, the average time taken to resolve a claim following notification increased by four months, from 300 to 426 days. On average every extra day taken to resolve a claim is associated with an additional legal cost of more than £40.23

16.There can be several reasons for delays, some of which are within NHS Resolution’s control and some of which are not. NHS Resolution considers that 250 cases is the optimal number of cases a claims operator can handle effectively. NHS Resolution told us that since the National Audit Office’s report, which found the average caseload per claims operator to be over 250, it had recruited more claims operators and that their average caseload was now 196. NHS Resolution refuted claims submitted in written evidence to the Committee that it slows the resolution process down by contesting the vast majority of claims it receives. NHS Resolution noted that 66% of the cases it resolves are settled before the court is involved, and only 0.7% of the cases which it resolves go to a full trial.24

17.The Committee also received written evidence from a law firm raising concerns that delays occur because the NHS fails to investigate or notify NHS Resolution quickly of harmful incidents that have occurred. NHS Resolution told us that it now requires trusts to notify it of obstetrics incidents within 30 days, in order to speed up resolution of these cases.25 NHS Resolution also confirmed that it has to live within its budget, so must manage the pace of settlements to remain within this limit.26 Another factor that can impact on how quickly some claims can be resolved is the capacity of the courts to deal with cases. The Ministry of Justice told us that it is aiming to streamline court processes for clinical negligence cases, possibly including joint expert reports on individual cases.27

Financial pressures on the NHS

18.Many trusts face financial challenges and ever-rising demand, including delivering stretching efficiency savings. The Care Quality Commission, in its 2016–17 State of Care Report, highlighted that future quality of care is precarious as the system struggles with complex demand, access and cost pressures, but notes that quality of care has yet to go down.28 However we are now seeing more and more patients waiting longer for their treatments. Almost 40% of clinical negligence claims against trusts are related to a failure or delay to diagnose or treat a patient. Therefore, longer waiting times could increase the risk of future clinical negligence claims. NHS Improvement told us that patients on waiting lists that may well come to harm should be brought forward. It also told us that so far, reviews of people waiting longer than desirable indicate that the level of harm to them has been extremely low, although it would need to watch this going forwards.29

19.NHS staff are working under huge pressure which may affect trusts’ ability to deal with complaints effectively. For example, NHS Improvement acknowledged that staffing levels for human resource provision across trusts is variable, which could impact on the trusts ability to deal effectively with complaints.30 The rising costs of clinical negligence will add to the financial pressures faced by the NHS. Spending on clinical negligence is forecast to increase from 1.8% of trusts income in 2015–16 to 4% by 2020–21, further reducing the amount of money available for patient care. Trusts spending a higher proportion of their income on clinical negligence are more likely to be in deficit, which in turn can have an impact on patients’ access to services and quality of care.31

23 Q 57; C&AG’s report paras 18, 3.4

24 Qq 60–64, 92–95; C&AG’s report para 18, submitted evidence

25 Qq 5, 57, submitted evidence

26 Qq 78–86; C&AG’s report para 18

27 Qq 65–66

28 Qq 10, 30; Care Quality Commission, The state of health care and adult social care 2016/17, 12 October 2017

29 Qq 29, 31–33; C&AG’s report para 16

30 Qq 102–111

31 Qq 10, 13–14; C&AG’s report para 8

29 November 2017