Clinical negligence, a changing market – part 2

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

Dyas: There has to be an opportunity to settle cases quicker

As highlighted in part one, there have been many positive developments in the clinical negligence market in recent years. Moving forward the overarching objectives for everyone involved needs to be reducing the number of medical incidents at the same time as improving patient experience and reducing costs through:

  • Open investigations with genuine claims settled quicker through earlier admission;
  • An embedded learning culture across the NHS;
  • More experienced claimant lawyers giving better advice; and
  • Settling cases quicker.

The starting point for any discussion regarding reform is nearly always cost. The importance of this can’t be understated given the impact of Covid-19 and the political nature of NHS funding.

However, it isn’t helpful to relate the cost of clinical negligence claims to the overall NHS budget. Healthcare for the nation shouldn’t be impacted by the cost of clinical negligence claims, nor should claims be compromised by the cost of healthcare. We should strive for both.

Although the objective is to reduce costs, there will always be clinical negligence claims as mistakes will happen. A system of redress for patients and the costs associated with experienced legal representation should be properly budgeted for.

Of course, there’s no magic money tree. Costs will ultimately be paid from the public purse. However, claimants deserve legal representation by experienced professionals whose fees are representative of the skill and work involved in reaching a settlement on behalf of their client.

It’s encouraging to see that NHS Resolution (NHSR) has had its indemnity coverage widened in recognition of delays to treatments caused by the pandemic. It should be recognised that, in an international emergency, the pressure that the NHS was and continues to be under is immense.

But there needs to be a clear approach agreed between parties when such failures of treatment should have been avoided, without Covid-19 being a defence for everything.

So what else might the future hold as we (hopefully) start to emerge from the disruption of the past two years?

Legal reform

There are two areas of consideration here. The first is fixed recoverable costs for lower-value cases.

The first consultation in 2017 influenced the thinking of larger law firms to review their strategy, with many channelling resource to higher-value cases. We’re now into a second consultation, this time with a detailed costs proposal. It closes at the end of April.

As highlighted in part one, average insured case values increased in 2021, with experienced claimant firms becoming more selective with the type of cases they commit resource to. Consequentially, claimants with low-value claims may find themselves with a genuine claim but with less choice.

This leads to the following possible outcomes:

  1. Providing NHSR delivers on its key priority to resolve claims quickly and fairly, these cases may prove to be cost-effective for law firms, resulting in claimants having access to the very best representation; or
  2. Should low-value claims become financially unviable for law firms to run, NHSR could find itself plagued by claims pursued by inexperienced organisations and unrepresented claimants. These are complex claims, regardless of their value. Ultimately, this could have the reverse effect and increase NHSR work as more experienced law firms are currently able to assess and remove cases that are unlikely to succeed.

The second issue is no-fault compensation schemes, a debate that comes around regularly. They are based on the simple principle that everyone receives compensation if harm was preventable. The system sounds simple, but could be challenging to implement due to:

  • A lack of accountability potentially creating a deterioration of standards;
  • Lower levels of compensation which would not reflect the individual care and financial needs of the claimant; and
  • No-fault claims are broader in their eligibility criteria, resulting in a substantial increase in claims and therefore significant administrative costs and compensatory payments (more than under the current tort system).

Better use of data

Whether this is incident data collected by the NHS and hospital trusts, or data collected by claimant law firms, there’s an opportunity to share and utilise data for everyone’s benefit.

Our experience in working with claimant law firms highlights the quality and type of data collected varies significantly. Nonetheless, this could be a rich source of information that can benefit all parties, leading to enhanced understanding from which to implement and drive forward change.

Even more crucially, there’s potentially data on every medical intervention which could and should be used to identify root causes. Different hospital trusts will collect information in different ways so the challenge in consolidating the data is huge.

However, this data offers a real opportunity to reduce the number of potential incidents.

Dealing with claims and complaints

Not all complaints are claims. Often people just need to understand what happened and for their voice to be heard. The challenge is to ensure that complaints are dealt with in a consistent and fair manner. Too often people approach solicitors because they are not getting answers or do not feel they are involved in the process.

When claims are put forward, most are successful and very rarely go to trial. This demonstrates that claimant solicitors excel in selecting the right cases to pursue, challenging the notion that the current system is really ‘adversarial’. It does need to be quicker, however.

Part one highlighted that, in our experience, only 5-10% of clinical negligence enquiries get through solicitors’ initial risk assessments. Of this total, only half are then pursued through the legal process.

Given most cases win, there has to be an opportunity to settle cases quicker. Quicker settlements mean lower costs on both sides. Whether that is achieved by quicker decision making, better communication or use of mediation, the results are easily measurable.

As an after-the-event insurer with a focus on working with experienced specialist law firms, most of the clinical negligence claims costs we pay are for those cases that are discontinued early following expert medical evidence. They are not for cases that have been pursued for many years where the prospects of success have been in question.

To conclude where these articles began – this is all about the human impact. Not just on the claimant, but on those around them and the healthcare professionals involved.

We are faced with a great opportunity to reduce these impacts, building on work already done and ramping it up to the next level. There are plenty of tools at our disposal.

By working more collaboratively, we will see measurable improvements that protect patients, their families and the NHS, bringing with them financial benefits for all.


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