Clinical negligence, a changing market – part 1

Posted by Tony Dyas, senior business developer at Legal Futures Associate Allianz Legal Protection

Dyas: Positive plan from NHS Resolution

How to compensate claimants continues to be a divisive issue, with many differing opinions on how this should be done. However, for clinical negligence claims, there’s no doubt that these are often life changing events for those involved, there’s a real impact on healthcare professionals, the cost to the NHS is very high and there will continue to be incidents.

Human or technological failings can happen in any walk of life. However, it’s in everyone’s interest to learn from mistakes to improve healthcare so there’s less human impact and cost.

NHS Resolution

It’s really positive to see that NHS Resolution has a business plan that focuses on reducing ‘incidents of harm’ and embedding a learning culture. This includes investigating complaints quicker so lessons can be learned more easily, with the intention of avoiding future incidents regardless of whether there is any negligence.

The GIRFT (Get it right first time) programme helps in learning and sharing best practice amongst NHS trusts, as well as providing guidance for frontline clinicians. By measuring and sharing data regarding performance across trusts, improvements are made to the outcomes for patients.

Virtual resolutions

The pandemic has expedited the use of technology to solve problems and gain efficiency. Both NHS Resolution and claimant firms are starting to engage with the use of alternative dispute resolution (ADR).

Nearly 300 claims were settled through online mediation in 2020/21; although a financial benefit is hard to quantify, there’s arguably more important benefits that are realised with ADR. Claimants often feel closure when meeting the defendants. It allows them the chance to voice what they have/are going through and to receive an explanation and/or apology.

When court proceedings are required, the move to video and audio links is a step in the right direction and perhaps a long-term solution for clearing the increasing backlog of cases waiting to be heard. This can save time and money for all concerned, although the long-term suitability of remote hearings on larger cases needs to be established.

Law firms are evolving

The consolidation of law firms through merger and acquisition has resulted in fewer, but more sophisticated and expert, practices. They have the capability to accurately assess the viability of clinical negligence cases early.

Our experience with law firms over the last 10-15 years indicates that only around 10% of claims will pass an initial risk assessment, of which just half are pursued through the legal process. This early assessment and ‘filtering’ is good for all parties as it ensures only viable claims move through the claims process, saving time and expense for all parties.

Cases decrease but settlements increase

The damages value of clinical negligence claims appears to be shifting, with a 33% increase in cases claiming damages of £100,000 or more. However, fast-track cases (below £25,000) have fallen by over 40%. Although the average claim size has risen, the number of claims has decreased. There are also fewer cases in the High Court, with more settling.

The 8.6% reduction in registered cases can obviously be attributed to Covid-19, with fewer clinical interventions. In addition, settlements are down by nearly 13%. Claims are being delayed by either the legal process, or due to difficulty in getting medical records and expert evidence from medical clinicians who have been reassigned to the fight against Covid-19.

The NHS does a fantastic job in the most demanding of situations, whether Covid-19 related or not. Unfortunately, sometimes things go wrong and mistakes are made.

However, it’s really encouraging to see the initiatives that NHS Resolution is adopting, moving away from an adversarial approach, to one of ensuring there are fewer ‘incidents of harm’. Anyone unfortunate enough to suffer a medical incident requiring investigation is more likely to experience:

  1. an open investigation into the incident, with the claimant being involved in the process;
  2. an explanation of what happened and an understanding that lessons will be learned from the incident, whether or not negligence is established;
  3. advice from experienced solicitors; and
  4. a faster resolution without the need for court proceedings.

After-the-event (ATE) insurers play a support role to the expertise that law firms bring to the clinical negligence market. The protection of ATE removes the financial worry for claimants, most of whom will be in unfamiliar territory, needing legal representation at a time when they’re most vulnerable.

It’s important that ATE providers work closely with solicitors to gain insight into how the market is changing and to understand and meet the needs of customers.

In part two, I’ll take that detailed look into what’s to come with clinical negligence in 2022 and beyond.


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