Penningtons report warns that Government reforms will reduce access to justice and increase incidence of clinical negligence

Posted: 03/02/2012

Clinical negligence claims in 2010/11 rose by 30.1% to 8,655 and the amount paid out in damages rose 12% to £729.1 million. In the face of this rising demand for legal redress, the Legal Aid, Sentencing and Punishment of Offenders Bill (LASPO) seeks to slash the legal aid budget and remove clinical negligence from the scope of legal aid.

The Penningtons Clinical Negligence Annual Report 2012 raises concerns that the proposed reform of civil litigation costs means that claimants may find it harder to get solicitors to take on their cases and may end up paying some costs out of their compensation.

Says Alison Appelboam-Meadows, Penningtons clinical negligence partner: "The combination of LASPO and the funding reforms as they stand will deny victims of clinical negligence access to justice at a time when the incidence of NHS errors and incompetence continues to rise. We are concerned that, by making it more difficult for people to bring claims, the reduced fear of litigation could result in even greater incidence of clinical negligence. It may also result in individuals bringing their own claims without legal help and ending up under-compensated.

"We are, however, glad to hear this week that the funding reforms will now be delayed until April 2013 and hope the extra time will allow for more consideration and a better outcome."

The Penningtons report also examines the potential impact of LASPO, the proposed civil litigation cost reforms and the Health and Social Care bills on access to justice and quality of patient care; reviews the 2010/11 NHSLA statistics; comments on hot legal and medical issues; and relates some of the difficult and tragic cases that the Penningtons team has worked on during the year.

Commenting on the report's key theme that the focus on cutting legal aid costs appears to be a greater government priority than improving patient care and reducing both waste and negligence within the NHS, Tim Palmer, Penningtons clinical negligence partner, said: "It is frustrating that the Government is trying to cut costs that only represent a tiny fraction of the NHS's £104 billion budget for 2010/11. While the NHSLA damages payout of £729.1 million and legal costs' bill of £235 million are undoubtedly very large, these amounts only represent 0.7% and 0.2% respectively of the total NHS budget.

"Compared with the £6.4 billion spent on the National Programme for IT in the NHS which has now been put on hold and the £500 million that the NAO estimates that trusts could save annually by more efficient procurement, the sums compare very favourably with the cost of obtaining professional indemnity insurance in the open market.

"Instead of targeting the legal aid budget for clinical negligence claims, surely the more obvious goal is to reduce the high costs of clinical negligence claims by reducing the incidence of clinical negligence."

The other main issue discussed in the annual report is the Health and Social Care Bill which many critics believe will result in a wide variation in the standard of care received across the country and potential issues with communication and co ordination of patient care. The bill represents probably the biggest shake-up of the NHS since its inception, bringing about a shift in power from hospital trusts, regional strategic health authorities and primary care trusts to newly-formed primary care commissioning groups made up of GPs.

Says Philippa Luscombe, Penningtons clinical negligence partner: "There is widespread concern that GPs will not have the time and experience to manage the level of responsibility and decision-making that the bill proposes to put on their shoulders and that decisions will be driven more by cost than by need.

"We regularly handle claims against GPs who make diagnoses on the most obvious cause of symptoms and do not investigate other, potentially more serious causes and where GPs do not take and/or document a full history. Often this appears to be due to lack of resources and/or financial pressures and the proposals seem likely to exacerbate this."

The annual report also discusses a wide range of legal and medical hot topics including concerns that many doctors accused of poor practice are allowed to continue working; the new NICE guidelines on women's rights to have a caesarean section; the growing number of serious adverse effects of taking Tamiflu; and the ongoing product liability claims for metal on metal hip implants.

Key facts and figures from NHSLA Report and Accounts 2011

• Over the last five years the annual number of clinical negligence claims notified to the NHSLA has risen by 52 % from 5,697 in 2005/6 to 8,655 in 2010/2011. Claims rose by 30.1% from 6,652 claims in 2009/10 to 8,655 in 2010/11.
• Payments made by the NHSLA in 2010/11 for damages rose to £729.1 million, a 12% increase on £650.9 million in 2009/2010.
• Legal costs incurred settling CNST claims during 2010/11 totalled £235.3 million, up 44% on £163.7 million in 2009/10. Claimant costs were £181.3 million and defendant costs were £54 million.
• Legal costs (claimant and defence) represented 29% of the total costs paid out by the NHSLA to settle claims for clinical negligence in 2010/11, up from 20% in 2009/10.
• The three clinical specialties attracting the highest numbers of reported CNST claims in 2010/11 were surgery (25,867 claims representing 39% of all specialty claims), obstetrics & gynaecology (13,095 and 20%) and medicine (12,045 and 18%).
• Obstetrics & gynaecology specialty claims continue to generate the highest value claims with a total value of £5.2 billion in 2010/11, 15.4% higher than £4.4 billion in 2009/10. Surgery claims value £2.2 billion and medicine claims value £1.6 billion.
• At 31 March 2011, the NHSLA estimated that it had potential liabilities of £16.6 billion relating to clinical negligence claims. This is a 10 % increase on the 2009/2010 total of £15.07 billion. 
• Contributions from the 238 NHS trusts towards damages and costs payments in 2010/11 were £781 million (up from £756 in 2009/10), an average of £3.2 million per trust. Five NHS trusts contributed more than £12 million each with the highest contribution from any individual trust being £14.9 million.

Copies of the 24 page Penningtons Clinical Negligence Annual Report 2012 can be downloaded by clicking here.

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