First, do no harm: the rise of clinical negligence claims

The BBC reports today that there has been a sharp rise in clinical negligence claims filed against medical professionals in relation to incidents at A&E. The Docket dives into the quirks of such claims and the government's response.

NHS Resolution – which is the NHS’ scheme administrator for legal claims – told the broadcaster there has been a 41% increase in A&E-related claims over the last five years, with 1,623 such claims in the last year. Those claims have totalled £556 million.

The increase in claims has been known for a while. An inquiry into the costs of clinical negligence to the NHS in general has been ongoing for some time, with a House of Commons committee finding in January that the costs of settlements have tripled since 2007, and that annual payments for claims are expected to exceed £4 billion by the end of the decade.

The Royal College of Emergency Medicine puts this down to rising pressure and delays in emergency departments, but points out that only 1 in 17,000 attendances leads to a claim. Not all of these have resulted in damages, with the BBC saying around half of claims lead to compensation.

Triaging a claim

Any watcher of Grey’s Anatomy will know how things can go wrong in a hospital: a failed CT scan, a misdiagnosis, a surgical error, a birth injury, poor management of a complaint, misprescribing medicine, etc, etc. But not all errors are negligent.

Clinical negligence is a civil law tort principle deriving from a medical professional’s breach of a common law duty of care to their patient.

That care must have fallen short of acceptable professional standards (this is the Bolam principle). However, it will not necessarily be negligent if the act or omission could be supported by a “responsible body of clinical opinion”. So, if a doctor fails to prescribe a certain medicine over fears of its side effects, and a body of experts would also have held those fears, the doctor may not be negligent.

That principle has now been refined to say that the medical peer opinion must be able to stand up to logical analysis (the Bolitho principle). That means a court can reject expert evidence if it is unreasonable or illogical.   

But if a breach of duty is established, it is still not plain sailing for the claimant. The breach must be directly linked to the patient’s harm, on a balance of probabilities test. Another obstacle is a limitation period of three years from the date of either the harm or the discovery of the harm.

Compensation – if awarded – is aimed at putting the patient back to the position they were in prior to the negligence.

Why are costs so high?

A&E departments in particular are facing astronomical pressures. NHS England reported its three busiest months ever between this May and July, as the country smouldered under successive heatwaves.

A&E is also the area of the hospital affected by pressure in other services. For example, a lack of available beds and delays to discharges into social care make it harder to move patients out of A&E departments and lead to bottlenecks. Add into the mix growing staff shortages, resulting in junior doctors being required to make urgent decisions – and things are bound to go wrong, somewhere.

But it’s not just A&E ramping up costs.

The House of Commons committee identified concerns about the level of compensation being awarded to patients. It raised a worry that the costs of claim settlement can be disproportionate to the compensation that could be awarded in the event of a successful claim.

And it highlighted the strange effect of a historic legal requirement that may be inflating claims. Under section 2(4) of the Law Reform (Personal Injuries) Act 1948, defendants paying for the future healthcare and treatment of patients must presume that that the care will be provided by the private sector and not the NHS.

NHS Resolution has said that this in particular is a major contributor to the increasing costs of cases worth £1 million or more, estimating that 60% of high-value settlement amounts relate to the costs of future care.

So, what next?

NHS Resolution has said it is taking action on the high volume of A&E-related claims, and has released guidance for hospitals on tackling the most common problems, such as missing signs of acute deterioration.

The House of Commons committee made various recommendations to the government in January on bringing down the costs of clinical negligence claims. These included:

• A national framework for improving patient safety, with clear targets

• A national system for sharing data between trusts, to allow for the analysis of trends

• A review of the complaints system and how to improve case resolution without resorting to litigation

• The development of alternative dispute resolution mechanisms for less complex cases, with an eye on non-adversarial and ombudsman models in New Zealand and Sweden

The Starmer government published a response to the report in April. It said it would write to the committee by Autumn to set out a case for change, with key milestones to bring down clinical negligence costs.  It agreed with the establishment of a national patient safety framework, saying an NHS Patient Safety Strategy has been in place for over six years but that there was more to do.

Under that government’s 10 Year Health Plan, it said it had committed to complaints reform by Summer 2028. It said however that there were already data sharing arrangements in place.