Clinical negligence report reveals a rise in claims as the NHS fails to comply with safety alerts or learn from mistakes

Posted: 01/02/2011

In 2010, clinical negligence claims rose by 9.2%, the amount paid out in damages by the NHS Litigation Authority (NHSLA) increased by 6% to over £650 million, and the Action against Medical Accidents (AvMA) charity claimed that more than 200 NHS organisations ignored orders from the National Patient Safety Association (NPSA) to improve the safety of treatment. According to the new Clinical Negligence Annual Report 2011 published by London and South East law firm Penningtons Solicitors LLP, 2010 was not a good year for the NHS.

Penningtons' second clinical negligence report provides insight into the hot legal topics of the year such as the Young Report with its potential to restrict access to justice for genuine claimants and highlights some of the 2010 headline-hitting clinical negligence cases such as the Stafford Hospital Inquiry and the tragic deaths caused by out-of-hours doctors and agency nurses.

Commenting on the report's key themes of more claims and the continuing failure of the NHS to learn from its mistakes, Phillipa Luscombe, Penningtons' clinical negligence partner and co-author of the report, said: "As solicitors who act for claimants, we see the devastating impact of clinical negligence on our clients and their families on a daily basis. It is frustrating that NHS trusts fail to learn from their mistakes. Contributions from NHS trusts towards damages and costs payments in 2009-10 were £756 million with the highest from any individual trust being £13.9 million. Surely it would be better for trusts and patients alike if this money was spent on improving standards of patient care rather than unsuccessfully fighting negligence claims.

"Given that almost half of claims (43%) between 1997 and 2010 resulted in an out-of-court settlement, it is surprising that the NHSLA still holds out for so long in many cases before either admitting liability or entering negotiations. A full admission is often only made and a settlement negotiated just a few weeks from trial."

Penningtons' review of the 2010 hot legal topics includes the claim by AvMA that Department of Health documents revealed widespread non-compliance with safety alerts issued to NHS organisations by NPSA. More than 200 had failed to comply with between one and 23 of the 57 alerts.

Tim Palmer, Penningtons' clinical negligence partner and co-author of the report said: "We share AvMA's concern that trusts do not appear to respond to or comply with these alerts with the necessary urgency. The purpose of the alerts is to save lives – probably the most urgent reason why any alert is ever issued. Many of the people who contact us, regardless of whether they go on to pursue a claim, are concerned to ensure that what happened to them should not happen to anyone else."

The Penningtons report also discusses the implications of the Government's changes to the legal aid system, particularly the removal of funding for clinical negligence claims, following Lord Young's (and previously Lord Jackson's) report which raises concerns about the perception of the cost of personal injury litigation and the growth of a compensation culture.

Key facts and figures from NHSLA Report and Accounts 2010

• Over the last five years the annual number of clinical negligence claims notified to the NHSLA has risen by 18.8% from 5,609 in 2005 to 6,652 in 2010. There was a 9.2% year-on-year increase between 2009 and 2010 .
• Payments made by the NHSLA in 2010 for damages rose to £650.9 million, a 6% increase on the 2009 amount of £614.3million.
• Total legal costs (claimant and defence) represented 20% of the total costs paid out by the NHSLA to settle claims for clinical negligence in 2009-2010, slightly up on 18.9% in 2008-2009 but a significant drop from 26.6% in 2007-2008.
• The three clinical specialties attracting the highest numbers of reported Clinical Negligence Scheme for Trusts (CNST) claims in 2010 were surgery (22,472 claims representing 39% of all specialty claims), obstetrics & gynaecology (11,533 and 20%) and medicine (10,154 and 17.8%).
• The total value of reported CNST obstetrics & gynaecology specialty claims reached £4.4 billion in 2010, 18.7% higher than the 2009 claim value of £3.7 billion. This specialty continues to generate the highest value claims. Surgery is second with £1.8 billion of claims and medicine third with claims totalling £1.4 billion.
• The NHSLA currently has provisions for clinical negligence claims totalling £15.07 billion - up from £13.7 billion at 31 March 2009.
• Contributions from NHS trusts towards damages and costs payments in 2009-2010 were £756 million with the highest from any individual trust being £13.9 million.

Copies of the 24 page Clinical Negligence Annual Report 2011 can be downloaded from the Penningtons website by clicking here.

The Penningtons analysis of the both the Young and the Jackson Reports and their implications for victims of clinical negligence can also be downloaded from the Penningtons website.

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