News and Publications

Learning from Litigation Claims: understanding the new NHS best practice guidance

Posted: 14/07/2021


The GIRFT Getting It Right First Time national programme and NHS Resolution issued a best practice guide on Learning from Litigation Claims in May 2021. The guide gives a recommended structure for learning from clinical negligence claims that should be led by trust legal departments and supported by clinicians and managers.

Although this is a positive initiative, long awaited by claimants and their lawyers, there is likely to be some scepticism about how successful the guidance will be in helping to reduce mistakes and improve patient safety because there has been a failure to learn from so many cases in the past.

The guidance appears to be modest recognition that there is something to be learnt from litigation claims. This is not least because experienced medical experts who are not employed by the NHS, will have scrutinised the care provided and produced reports with their views on what went wrong.

Claimant lawyers, with a vast experience of analysing claims, will have concluded, at an early stage, that there is evidence that mistakes have been made (the fact that they screen out many more cases than are brought, saving significant costs, is frequently overlooked).

In addition, patients and their families can describe their experiences, after resolution of a claim, providing an insight into why errors have occurred and how they can be avoided in the future.

A disappointing aspect of the guidance is the failure to emphasise the human cost of litigation claims and this has, largely, been left to Sir Robert Francis QC, chair of Healthwatch England, in his statement of support.
If the guidance is implemented fully, in the spirit in which it is intended, it has the potential to achieve its objectives of improvements in patient safety which will then lead to a reduction in costs.

Key guidance

The guidance confirms that equal importance should be given to learning from claims as is given to learning from complaints, incidents and inquests. Bearing this in mind, governance teams are encouraged to make use of the information available to them, in particular to:

Take time to learn from litigation (claims handling)
The emphasis is on obtaining relevant clinical details about claims and allocating time to review this information within a department.

A structure for learning has been set out which should be led by trust legal teams, managers and clinicians.

Obtain information
NHS Resolution claims handlers can provide updates and feedback on claims. The trust should also make the most of the GIRFT and NHS Resolution data packs and other resources on the intranet.

NHS Resolution Litigation data packs are sent on an annual basis to each trust, benchmarking performance against others and identifying areas of high performance and targets for improvement. The pack provides a five point plan that focuses on:

  • assessing the department's benchmarked position compared to others;
  • correct coding (an administrative task to ensure the full extent of types of errors are known);
  • undertaking a detailed review of claims including witness statements, panel firm reports and patient records;
  • using and analysing sources of data from complaints, inquests and patient safety incidents with claims information;
  • accepting support from GIRFT and NHS Resolution if performance is below the top quartile.

Contact panel firms
Obtain feedback on claims and make the most of educational offerings from firms which are employed by NHSR to defend claims.

Quarterly reviews
Meetings should take place on a quarterly basis and involve learning from clinical claims and working in partnership with patients' families and carers.

The guidelines note a change in emphasis in that the trust was previously expected to facilitate claims management whereas it now has an expanded role with time to learn from claims. Importantly, it is the lead clinician who will be given protected time and expected to facilitate discussions in the team.

The guidance gives examples of improvements across a number of areas brought about by a focus on litigation claims, particularly in relation to consent, document keeping and safety checklists.

Two initiatives are cited in relation to high value claims where errors in maternity care often lead to devastating birth injuries. These are:

  • The Early Notification Scheme where trusts are required to report maternity incidents that have the potential to become high value claims for investigation by NHSR litigation lawyers; and
  • The Maternity Incentive Scheme which was launched in December 2017 to offer financial incentives for trusts which meet 10 safety actions designed to improve delivery of best practice.

Statement of support

In his statement of support, Sir Robert Francis QC reminds those reading the guidance that the first priority is the patient who is the victim of the medical accident. He points out that patients want honest explanations, appropriate apologies and support for their needs. He emphasises the importance of the duty of candour and that trust can be lost if the promise of learning from mistakes is not offered.

He states: “So many victims of medical accidents I have met wanted, but were denied, honest explanations, appropriate apologies and timely support for their needs. They would have welcomed being involved in working out how their experience could be used to avoid others suffering as they had.”

Commentary

It is hard to understand why the experiences of patients who are the victims of clinical negligence have been undervalued for so long as a learning tool to improve patient safety. The priority should be learning from mistakes to avoid the huge impact errors have on patients and their families. This is an underused resource and it is hoped that the guidance will redress this to some extent.

How we can help

If you have concerns about any aspect of care, please contact us. We are happy to discuss matters with you on a confidential basis with no commitment or charge and we appreciate that the prospect of bringing a legal claim can be daunting for many families. Our aim is to make this as smooth a process as possible.

For further information, please call us on 0800 328 9545, email clinnegspecialist@penningtongslaw.com or complete our online assessment form.


Return to news headlines

Penningtons Manches Cooper LLP

Penningtons Manches Cooper LLP is a limited liability partnership registered in England and Wales with registered number OC311575 and is authorised and regulated by the Solicitors Regulation Authority.

Penningtons Manches Cooper LLP