NHS litigation: grounds for optimism | Opinion

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Publication of the NHS Resolution (NHSR) annual report in July closed one book and opened another, with the launch of ‘Advise, Resolve and Learn: Our strategy to 2025.’  Looking ahead, and despite the deep seated operational problems that currently beset the NHS post pandemic, where NHSR is concerned, at least, there are genuine grounds for optimism as we look ahead to 2025.

Peter Rigby

Our expectation is that NHSR will accelerate its focus on collaboration, building on successful pilots schemes of the last two years. Finding new ways to settle claims has reached the tipping point of transition from litigation to other forms of dispute resolution.

Claimant legal costs have remained broadly flat during the last two years, and cases resolving through litigation have fallen to their lowest ever level of 23%, thanks to genuine and significant efforts by NHSR, and many claimant firms, to engage in various types of dispute resolution.

Fletchers Group is among a number of law firms that have embraced collaboration. That includes, for example, working with NHSR on group resolution meetings, successfully settling a number of claims in one sitting.

Looking ahead, we urge NHSR to extend the use of mediation in higher value cases; mediation and other types of settlement meeting can be an effective means of resolving cases and removing frictional costs. As part of the road to 2025, we would like to see more of them as it will make a positive difference to resolution rates and costs, an aim we both share.

As we get to grips with the next three years, we continue to face the headwinds of significant underlying inflationary pressure and the ongoing impact of the discount rate, both of which will continue to exert upwards pressure on claims costs.

Inflationary pressures in areas such as care costs have impacted overall costs of higher value claims, and will continue to do so while inflation remains at its current level.

Fast forward to 2025, and I hope will have seen a further increase in claims being settled without litigation, while maintaining the opportunity to litigate where it is required. I also hope more claims, especially in maternity, will go through the early notification scheme. Early notification ‘proactively investigates specific brain injuries at birth for the purposes of determining if negligence has caused the harm.’

The most recent data shows that 32% of new maternity claims go through early notification and, while there has been positive progress, we would like to see this increase significantly as part of the new strategy. Processing claims via early notification enables earlier support for the family, quicker liability admission and rapid initiation of interim payments to get the family access to much needed therapies and housing support.

Supporting our clients in medical negligence cases will continue to be our number one priority, but at a more macro level, all of us engaged in this emotive area of law want to support and enable improving conditions for patients using the NHS. There is in this respect, welcome acknowledgement, including in NHSR of the role of data in driving black box (or lessons learned) thinking.

In the airline industry, following a crash, the aeroplane’s black box is opened, the data is analysed, and the reason for the accident examined. Procedures are then revised so that the same mistake doesn’t happen again. Learning through failure leads to lasting change.

The NHS has found this principle one of the toughest nuts to crack, but with support from all stakeholders including ourselves and NHSR, we urge the NHS to grasp this approach; although in overall terms claims incidence is small in the NHS, I believe black box thinking is the right way to bring about a long term reduction in medical negligence, especially in maternity.

There is still a long way to go in respect of bringing about a significant long term reduction in maternity claims.

I’m sure I speak for all of us working in this field of the law in urging renewed efforts within the NHS to champion whistleblowers, enable a black box learning culture and further the principles of collaborative working, for example in improved data sharing.

Taking these steps will help us all to live up to the NHSR’s 2022-2025 aims of advising, resolving and learning to reduce the tragedies that beset families when things go wrong in the NHS.

Peter Rigby is director of medical negligence, serious injury at Fletchers Solicitors

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