Handling clinical negligence claims in England. REPORT BY THE COMPTROLLER AND AUDITOR GENERAL HC 403 Session : 3 May 2001

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1 Hadlig cliical egligece claims i Eglad REPORT BY THE COMPTROLLER AND AUDITOR GENERAL HC 403 Sessio : 3 May 2001

2 Hadlig cliical egligece claims i Eglad REPORT BY THE COMPTROLLER AND AUDITOR GENERAL HC 403 Sessio : 3 May 2001 LONDON: The Statioery Office 0.00 Ordered by the House of Commos to be prited o 30 April 2001

3 Executive summary ad recommedatios Itroductio 1 Why we udertook this examiatio 2 Coclusios 3 (a) The umber of claims, the costs of settlig them 3 ad the time take (b) Patiets' access to remedies 4 (c) Maagig patiets' claims 6 This report has bee prepared uder Sectio 6 of the Natioal Audit Act 1983 for presetatio to the House of Commos i accordace with Sectio 9 of the Act. Joh Bour Natioal Audit Office Comptroller ad Auditor Geeral 27 April 2001 The Comptroller ad Auditor Geeral is the head of the Natioal Audit Office employig some 750 staff. He, ad the Natioal Audit Office, are totally idepedet of Govermet. He certifies the accouts of all Govermet departmets ad a wide rage of other public sector bodies; ad he has statutory authority to report to Parliamet o the ecoomy, efficiecy ad effectiveess with which departmets ad other bodies have used their resources. Part 1 Itroductio 7 Cliical egligece 7 Public bodies' ivolvemet 8 NHS healthcare providers 8 The NHS Litigatio Authority 9 The Legal Services Commissio 10 Developmets i hadlig claims for cliical egligece 11 Why we udertook the study 11 Scope ad methodology 12 For further iformatio about the Natioal Audit Office please cotact: Natioal Audit Office Press Office Buckigham Palace Road Victoria Lodo SW1W 9SP Tel: Website address:

4 Cotets Part 2 The umber of claims, 13 the costs of settlig them ad the time take The umber, value, type ad causes of claims 13 (a) Number of claims 13 (b) Value of claims 13 (c) Type of claims 14 (d) Causes of claims 15 Time take to settle claims 16 (a) The Cliical Negligece Scheme for Trusts 16 (b) Existig Liabilities Scheme 16 The costs of settlig claims 18 Addressig the backlog of claims 18 Part 3 Patiets' access to remedies 21 How may patiets suffer egliget harm? 21 How might barriers to makig claims be lesseed? 21 (a) Do patiets receive sufficiet iformatio from the NHS about potetial claims? 21 (b) Do patiets have access to mechaisms that will deliver appropriate resolutios to their problems i a timely ad efficiet way? 22 Coditioal fee agreemets 24 Small ad medium size claims 24 Does litigatio deliver to patiets the remedy they wat? 25 (a) The "package" approach 26 (b) Mediatio 27 Part 4 Maagig patiets' claims 29 How does the NHS orgaise its hadlig of claims 29 from patiets? Optios for deliverig improved claims hadlig 30 How do the Legal Services Commissio ad the 30 NHS Litigatio Authority select ad maage their solicitors? The Legal Services Commissio 31 The NHS Litigatio Authority 32 Selectio of legal advisers 32 Maagemet ad moitorig 33 Appedices 1 Methodology 35 2 The Departmet of Health's iitiatives to improve 37 cliical goverace 3 Our expert pael 38 Glossary 39

5 executive summary Executive Summary ad Recommedatios Itroductio 1 The NHS is legally liable for the cliical egligece of its employees, icludig hospital doctors, arisig i the course of their employmet. 1 The NHS takes resposibility for dealig with ay claims, icludig fudig the defece of the claim, ad for ay legal costs or damages that may become payable. The majority of patiets who make claims are publicly fuded through the legal aid scheme. 2 There has bee cocer at the scale of the curret ad likely future costs of settlig cliical egligece claims ad the time take to resolve them. I the past, a sigificat umber of claims were hadled poorly resultig i delays ad additioal costs. For patiets or relatives makig claims ad cliicias accused of egligece, delay i resolvig claims ca cause further distress ad icrease costs. Because of the cost ad upredictability of pursuig claims, few people were able to do so uless they qualified for legal aid. I practice, most of those that did ot qualify for legal aid were excluded from access to legal process. Key Facts Aroud 10,000 ew claims were received i At 31 March 2000, provisios to meet likely settlemets for up to 23,000 outstadig claims were 2.6 billio. I additio, it was estimated that a further 1.3 billio would be required to meet likely settlemets for claims expected to arise from icidets that have occurred but ot bee reported. Oly 24 per cet of claims fuded by the Legal Services Commissio are successful. The total aual charge to NHS icome ad expediture accouts for provisios for settlig claims has rise seve-fold sice Cerebral palsy ad brai damage cases accout for 80 per cet of outstadig claims by value ad 26 per cet of claims by umber i the largest egligece scheme. For claims closed i with settlemet costs i excess of 10,000, the average time from claim to paymet of damages was five ad a half years. I 65 per cet of settlemets i below 50,000, the legal ad other costs of settlig claims exceeded damages awarded. executive summary 1 This excludes Geeral Practitioers, who are self-employed. Claims agaist GPs are hadled by the Medical Defece Uio, the Medical Protectio Society, the Medical ad Detal Defece Uio of Scotlad or commercial isurers ad settlemets fuded by those bodies. 1

6 3 The NHS, the Legal Services Commissio (formerly the Legal Aid Board) ad the Lord Chacellor's Departmet have itroduced a umber of iitiatives to address these issues: The NHS Litigatio Authority was formed i 1995 to admiister the Cliical Negligece Scheme for Trusts ad, from 1996, the Existig Liabilities Scheme, schemes the Departmet of Health had set up to fud settlemets of claims for cliical egligece. The Litigatio Authority ow oversees the maagemet of 42 per cet of claims ad exerts a powerful ifluece over how defece solicitors hadle claims; Both the Litigatio Authority (by appoitig ad closely maagig a pael of specialist solicitors) ad the Legal Services Commissio (through its frachisig ow quality mark scheme) have attempted to improve the maagemet of claims by usig or fudig those solicitors that meet quality criteria; The Lord Chacellor's Departmet has take steps to wide access to justice beyod those i receipt of legal aid by makig coditioal fee (o wi, o fee) agreemets more attractive to claimats ad their solicitors. Sice April 2000, claimats' solicitors have bee able to add to their charges a success fee of up to 100 per cet of their costs if the claimat wis the case ad this uplift is recoverable from the losig side; ad From April 1999, followig a review by Lord Justice Woolf, ew Civil Procedure Rules were itroduced. Those rules set out a timetable for the coduct of claims before they go to court. The Woolf report also recommeded that o-litigious solutios should be explored before proceedig to litigatio. Why we udertook this examiatio 4 We udertook this examiatio i respose to cocers, icludig those expressed by Lord Woolf i his 1996 Access to Justice report ad the Public Accouts Committee i their 5th Report Sessio , about the lack of publicly available iformatio o claims ad whether the system for dealig with those ivolved i cliical egligece was cost-effective, quick, efficiet ad humae. Our report examies: the umber of claims, the costs of settlig them ad the time take; patiets' access to remedies 2 ; ad how patiets' claims are maaged. 5 Our methodology is set out at Appedix 1. 2executive summary 6 This report does ot examie measures take to prevet egliget icidets from happeig. At the time of our study, some iitiatives, such as the cliical goverace programme, were uderway but may strads were i their early stages of implemetatio. Other elemets, for example the recordig ad reportig of adverse icidets, were beig expaded. Appedix 2 summarises the mai iitiatives take by the NHS i Eglad sice We pla two further studies to examie the success of these iitiatives; oe will look at cliical goverace i hospitals, the other at cliical goverace i primary care. 2 I this report we have used the term "patiets" to deote claimats ad their represetatives.

7 Coclusios (a) The umber of claims, the costs of settlig them ad the time take 7 The rate of ew claims per thousad fiished cosultat episodes rose by 72 per cet betwee 1990 ad I the NHS received some 10,000 ew claims ad cleared 9,600. At 31 March 2000 there were a estimated 23,000 claims outstadig. The estimated et preset value of outstadig claims at 31 March 2000 was 2.6 billio (up from 1.3 billio at 31 March 1997). I additio, there is a estimated liability of a further 1.3 billio where egliget episodes are likely to have occurred but where claims have ot yet bee received. 8 Cliical egligece is ot a issue for Eglad aloe. As at 31 March 2000, provisios to meet outstadig claims were 2.6 billio for Eglad, 38 millio for Scotlad, 111 millio (icludig creditors) i Wales ad 100 millio i Norther Irelad. 9 Because of the time lag betwee icidets, claims ad settlemets, it will take a log time for the full impact of ay reforms to become apparet. There are, however, already idicatios that the iitiatives take are havig a positive impact. For example, the umber of claims closed (settled or dropped) i the mai egligece scheme has icreased from 660 i to over 3,200 i O average, claims still take a log time to settle. Excludig claims for cerebral palsy ad brai damage ijuries, those closed i had take, o average, five ad a half years to settle after receipt of the claim; ad claims still outstadig are already o average 8.3 years old, with 22 per cet over 10 years old. As yet there are o actio plas or targets to address these older claims but, followig receipt of this report, the Departmet have decided to ask the Litigatio Authority to review the backlog of claims o a aual basis ad report to them o the fidigs. 11 May of these claims are fuded from legal aid ad therefore resolvig these logstadig claims is clearly a key issue for both the Litigatio Authority ad the Legal Services Commissio. While it would be iappropriate ad cotrary to policy for them to review joitly cases o a idividual basis, the two orgaisatios share a iterest i dealig with cases i a cost-effective ad timely maer. Both orgaisatios would prefer a early settlemet because that is what most patiets wat, ad because costs ted to icrease as time goes o. But either body ca force a claimat to a resolutio where the claimat wishes to delay a case, as ofte happes while for example developig their claim, or to access the appeals process. Up to February 2001, the two bodies had ot shared iformatio about the thousad or so cases over five years old that appear to be supported by legal aid, but i the light of our work they have shared this iformatio ad are ow assessig the ext steps. Recommedatios (i) (ii) The Litigatio Authority should draw up a actio pla with quatified targets ad performace measures to address claims that have bee ope for more tha five years. The Legal Services Commissio should, similarly, moitor the progress of cases over five years old, ad take steps to brig them to a timely coclusio. executive summary (iii) The Litigatio Authority ad the Legal Services Commissio should hold regular meetigs to cosider geeral cocers i cocludig cases. 3

8 (b) Patiets' access to remedies 12 Patiets may ot claim because they do ot kow that they have grouds for doig so. It is the Departmet of Health's policy that patiets should be told where they have suffered a adverse medical icidet ad should be offered remedial healthcare, a factual explaatio ad a apology. But the Departmet of Health have told us that they do ot see it as the busiess of the NHS to advise patiets that there might o the face of it be grouds to believe a adverse medical evet may have bee due to egligece, or suggest patiets seek legal advice, or admit liability. There is, however, o clear departmetal guidace to staff about this policy ad there are cases where staff give idicatios to patiets that there are grouds for suspectig egligece was a factor i a adverse icidet or advise them to cosult a solicitor. 13 Patiets may also have bee deterred from claimig because they could ot afford to do so. Cliical egligece claims are very expesive ad upredictable to pursue ad i the past few people were able to pursue them without the support of legal aid. To wide access to justice, the Lord Chacellor's Departmet has take steps to make coditioal fee (o wi, o fee) agreemets more attractive by eablig claimats' solicitors, from April 2000, to charge a success fee recoverable from the losig side if the case is wo. It is too early to say whether this will ecourage more claims, although the umber of isurace products backig coditioal fee agreemets has grow sice the Access to Justice Act. The Lord Chacellor's Departmet is moitorig the success of solicitors' firms i usig coditioal fee agreemets, ad the use ad developmet of other private fudig ad isurace products. The Govermet will cosider whether the availability of legal aid for cliical egligece claims should be eded i the light of that moitorig. 14 It is ulikely that coditioal fee agreemets will be appropriate for small value claims because of the high costs of obtaiig iitial iformatio about the viability of a claim. Ad, uder the Legal Services Commissio's fudig code, claims less tha 10,000 are ulikely to receive legal aid fudig. Our aalysis idicates that for settlemets up to 50,000 the costs of reachig the settlemet are greater tha damages awarded i over 65 per cet of cases. These factors show that the curret system is a iefficiet way of resolvig small ad may medium size claims, except that it might discourage claims with o legal merit. We cosider that there is a eed for ew ways of resolvig low value claims, for example by usig regioal paels that would apply the curret legal criteria 4executive summary

9 for determiig whether cliical egligece had take place. Such paels would be empowered to award compesatio to a give ceilig, ad to recommed o-fiacial remedies. I March 2001, the Lord Chacellor aouced that, i future, Govermet departmets will oly go to court as a last resort. The Lord Chacellor's Departmet published a formal pledge committig Govermet departmets to settle legal cases by alterative dispute resolutio techiques wheever the other side agrees to it. 15 Research has idicated that claimats ofte wat a wider rage of remedies tha litigatio is desiged to provide, for example, a apology, a explaatio or reassurace that it would ot happe agai; but they say they were ot offered them. The Litigatio Authority has issued guidace promotig the givig of appropriate apologies ad iformatio. We saw examples where claims maagers had ascertaied what patiets' requiremets were ad provided creative solutios to satisfy them. These solutios icluded providig detailed techical explaatios, assurace about how recurreces would be preveted ad udertakigs to give future remedial healthcare ad assistace with trasport ad childcare; ad payig for a patiet's legal costs to eable them to obtai a idepedet assessmet of the fiacial compesatio the Trust had offered. I this way, Trusts avoided claims escalatig ito costly litigatio. This approach a example of which is at Case Study 1 could be adopted more widely, provided the claims maagers are competet ad authorised to operate this way. However, the Departmet of Health have a policy of ot permittig complaits to be pursued where the patiet wats fiacial compesatio. This ca make it difficult for the NHS to eter ito such a dialogue with patiets who wat somethig i additio to moey. It ca thus deprive patiets ad their families of the potetial beefits of solutios tailored to meet their eeds. Recommedatios (iv) (v) The Departmet of Health should give clear guidace to NHS Trusts o what iformatio they may give to patiets who have suffered adverse icidets, icludig those who may have suffered egliget harm. The Departmet of Health, the Lord Chacellor's Departmet ad the Legal Services Commissio should further ivestigate alterative ways of satisfactorily resolvig small ad medium sized claims, for example through the offerig of the wider rage of o-fiacial remedies that patiets say they wat, settig up regioal paels ad offerig mediatio where appropriate. Case Study 1 Applicatio of the package approach I Jauary 1998, a patiet remaied awake for five miutes durig a hysterectomy. This was due to the aaesthetic circuit beig coected icorrectly. Whe the patiet metioed the icidet to the ursig staff the followig day, the aaesthetist discussed the situatio with her ad explaied how the error had arise. Although the patiet iitially declied a offer of cousellig, she bega to suffer from ightmares. The Trust arraged ad paid for itesive psychological cousellig over four weeks at a cost of 2,000. The Trust remais willig to arrage further cousellig but this has ot bee ecessary. Three moths after the icidet, the patiet met with the psychologist, the Head of the aaesthetic departmet ad the Trust's Risk ad Litigatio Maager. The patiet was give a full explaatio of how the icidet had occurred ad what steps had bee take to prevet a similar occurrece from recurrig. The Trust accepted full resposibility ad apologised to the patiet. The patiet had made a request for compesatio. The Risk ad Litigatio Maager discussed the rage of settlemets i similar cases ad a offer of 5,000 was made, alog with advice to seek idepedet legal advice. The patiet did discuss the amout with a solicitor but was happy to accept the offer of 5,000. There were o legal costs for either the Trust or the patiet. Source: NHS Trust executive summary 5

10 (c) Maagig patiets' claims 16 We estimate that at March 2000 the Litigatio Authority was hadlig about 42 per cet of cliical egligece claims made agaist the NHS. The remaider, icludig may low value claims, were hadled by Trusts. Some Trusts hadle low volumes of claims; because of this may claims hadlers are ot i a positio to develop expertise. I additio, the costs of hadlig claims at Trusts are higher because ecoomies of scale are ot achieved. These factors poit to the eed for a reorgaisatio of the claims hadlig fuctios curretly carried out at Trusts. 17 The Departmet of Health are about to examie the orgaisatio of claims hadlig for claims relatig to post-april 1995 icidets. Several optios should be cosidered, icludig oe Trust actig as aget for others; formatio of cosortia; or the Litigatio Authority maagig all claims, either from Lodo, or from regioal offices. Each optio has advatages ad disadvatages. Key issues are providig a fiacial icetive to Trusts to reduce icidets ivolvig egligece (this is abset if they do ot pay for them); if a regioal orgaisatio is chose, how to maage those aspects of claims hadlig that are best performed at local level, icludig providig o-fiacial remedies ad securig the co-operatio of cliicias; ad the cost-effectiveess of a particular patter of claims hadlig. 18 Obtaiig a effective service from solicitors is crucial if claims are to be resolved satisfactorily ad i a timely ad ecoomical way. The Legal Services Commissio ad the Litigatio Authority have each take their ow actio to secure a good quality service from solicitors, ad ca poit to some success followig those chages. I the case of the Legal Services Commissio, although oly 24 per cet of claims with legal aid backig were successful, the success rate for claims that proceed beyod the iitial ivestigatio rose from 46 per cet i to 61 per cet i Ad the Litigatio Authority has icreased the rate at which claims are closed (paragraph 9). But both bodies make little use of quatified performace measures i maagig solicitors. For example, measures such as outcome compared to cost ad time estimates have ot yet bee employed i a systematic way. Recommedatios (vi) I cosiderig ay orgaisatio of the claims maagemet fuctio curretly performed withi Trusts, the Departmet of Health should take ito accout ot just cost but also how to provide Trusts with fiacial ad other icetives to reduce icidets that lead to claims ad how best to deliver those fuctios that eed to be carried out locally. (vii) The Litigatio Authority ad the Legal Services Commissio should each develop quatified measures of performace for the solicitors they istruct or fud ad icorporate these ito selectio procedures, cotracts ad moitorig arragemets. 6executive summary 19 The Departmet of Health, the Lord Chacellor's Departmet ad the Legal Services Commissio have accepted our recommedatios.

11 Part 1 Itroductio Cliical egligece 1.1 The NHS has a duty of care towards those it treats. People who cosider they have suffered harm from a breach of this duty ca make a claim for compesatio. The fiacial compesatio they seek may relate to quatifiable fiacial loss, arisig for example from loss of earigs through icapacity, or to the cost of cotiuig care where the claimat's level of icapacity is such as to require it, or to geeral damages for pai, sufferig ad loss of ameity. 1.2 I order for a claim to succeed, the claimat must prove four thigs: that they were owed a duty of care (this should be relatively easy to prove for most patiets uder the care of medical staff); that the duty was breached. The issue here might be simple egligece for a act or a omissio. But the geeral test for cliical egligece, the Bolam test, affords a defece to a cliicia "if he has acted i accordace with a practice accepted as proper by a resposible body of medical me skilled i that particular art" 3 ; the breach of duty caused, or cotributed materially to, the damage i questio; ad 1.4 Claims are made cocerig the whole rage of cliical work although high value claims maily relate to birthrelated ijuries, pricipally cerebral palsy ad brai damage. Examples of claims are at Figure 1. I most cases successful claimats receive their damages as a lump sum. This ca oblige the NHS, whe it is the losig party, to pay the full settlemet value at oce to allow the successful claimat to ivest the moey ad thus provide for future costs of care, if ecessary, typically i high value settlemets. I March 2000 the Lord Chacellor's Departmet issued a cosultatio paper 4 to explore the advatages, disadvatages ad alteratives to lump sum awards, for example courtimposed structured settlemets that ivolve periodic paymets. The cosultatio period closed o 31 May 2000 ad the Departmet is curretly cosiderig its positio. 1 Examples of claims ad settlemets I November 1990 a patiet suffered brai damage followig allegedly egliget maagemet of septicemia. The hospital received a claim for 1.5 millio i September The claim was settled for 252,000 i November 1999 with defece costs of 60,000 ad claimat's costs of 90,000. I October 1990 a patiet atteded hospital where there was a failure to diagose a fractured to diagose a fractured wrist. The hospital received a claim i March 1996, which was settled i March 1999 for 7,800, with claimat's costs of 6,800 ad defece costs of 3,700. the cosequeces ad effect of the damage. 1.3 I geeral, uder the Limitatio Act 1980, claims have to be made withi three years from the date of the ijury, or alteratively three years from the date that the claimat kew they had suffered a ijury. I the case of miors, the three years limitatio period does ot start util they reach the age of 18. People uder a metal disability have ulimited time i which to make a claim. I April 1993 a patiet uderwet a sterilisatio procedure. The operatio was ot a success ad a child was bor i Jauary Subsequetly, a further sterilisatio was performed at aother hospital where it was foud that there was o filshie clip o the right tube. A claim was received by the first hospital i July The claim was settled i March 1999 for 40,000, with claimat's fees of 21,300 ad defece costs of 18,200. Source: NHS Litigatio Authority Existig Liabilities Scheme database 3 Bolam v Frier Hospital Maagemet Committee [1957] 1 WLR 582. I Bolitho v City ad Hackey Health Authority, the House of Lords modified this by statig that i rare cases it would be egliget to act i accordace with a professioal opiio that "is ot capable of withstadig logical aalysis". 4 Damages: The Discout Rate ad Alteratives to Lump Sum Paymets, Lord Chacellor's Departmet, March 2000 part oe 7

12 1.5 Ivolvemet i cliical egligece claims ca have a severe impact o both patiets ad cliicias. Apart from the cosequeces of ay harm they have suffered, patiets ca fid it difficult to come to terms with what happeed to them util the claim is settled. Eve the, may are dissatisfied because they do ot get all of what they wat out of the process. Research has show that claims ca cause cliicias great stress. 5 Public bodies' ivolvemet 1.6 Three public orgaisatios are directly ivolved i cliical egligece claims: NHS healthcare providers, the NHS Litigatio Authority ad the Legal Services Commissio (Figure 2). NHS healthcare providers 1.7 Util 1989, idividual practitioers were resposible for claims for cliical egligece agaist them. Practitioers isured themselves agaist the potetial costs through the Medical Defece Uio, Medical Protectio Society ad the Medical ad Detal Defece Uio of Scotlad. NHS idemity was exteded i 1990, ad the NHS took over resposibility for all outstadig ad future cliical egligece claims ivolvig medical ad detal staff employed by health authorities, but ot geeral medical or detal practitioers. A trasfer of fuds from the defece bodies to the NHS accompaied this trasfer of resposibility. 1.8 NHS Trusts are liable for claims for icidets occurrig after their establishmet (health authorities occupy that positio for claims i respect of earlier icidets). They udertake the iitial ivestigatio ad assessmet of adverse medical icidets. The extet of their further ivolvemet i dealig with the claim depeds o its scale, ad whe it arose. How the NHS hadles ad fuds a claim depeds o the scheme to which it relates (Figure 3). At March 2000, there were some 12,000 claims beig hadled by Trusts ad health authorities, although i the NHS Litigatio Authority took over all claims for icidets before April Parties to cliical egligece claims Sets policy o provisio of healthcare. Cosolidates total provisios of 2.6 billio ad a estimate of 1.3 billio at 31 March 2000 to meet likely settlemets for cliical egligece claims. Lord Chacellor's Departmet sets policy o public fudig of claims. NHS Trusts Provide healthcare ad are defedat i majority of claims. 10,000 ew claims received i ad 9,600 closed. Fuds claims which meet its criteria (7,375 claims i at gross cost of 62 millio) ad awards frachises to competet solicitors. NHS Litigatio Authority hadles 42 per cet of claims ad istructs its 16 Pael Solicitors. Closed 3,254 claims i at a cost of 386 millio. Solicitor of Trust's choice provides legal advice i the remaiig 58 per cet of claims. All public fudig for ew claims must go through the 253 solicitors with a specialist level quality mark i cliical egligece. part oe Defedat v Claimat (23,000 ope claims at 31 March 2000) Source: Natioal Audit Office survey of trusts 8 5 A orgaisatio with a memory, Departmet of Health, 2000 paragraph 2.15

13 3 The mai fudig aveues available to NHS bodies to meet cliical egligece settlemets Source: Yes Cases maaged by Trust or health authority who pay first 10,000 of ay settlemet. Balace fuded from Existig Liabilities Scheme after Litigatio Authority approval. From April 2000 the Authority will istruct solicitors for ew claims ad the scheme will wholly fud all claims. Natioal Audit Office Claim received allegig cliical egligece Was the icidet before 1 April 1995? The NHS Litigatio Authority 1.9 The NHS Litigatio Authority, a special health authority, was set up i 1995 to admiister the Cliical Negligece Scheme for Trusts, ad took o the admiistratio of the Existig Liabilities Scheme whe the scheme was established i 1996: The Cliical Negligece Scheme for Trusts is a poolig arragemet. It was itroduced as a volutary scheme to limit the liability of member Trusts for cliical egligece claims where the icidet occurred after March By 31 March 2000, all but oe Trust had joied the scheme. From April 2000, Primary Care Trusts have bee eligible to apply for membership; ad to date all have joied the scheme. No Trust maages claim, istructs solicitors, authorises ad pays for settlemet. No Is estimated claim value above Trust's excess? Yes Trust maages claim ad istructs solicitors for claims April 1995 to March For claims arisig after March 1998, Trust refers claim to the Litigatio Authority which istructs pael solicitors. Trust pays settlemet up to excess ad 20 per cet beyod excess, up to its threshold. The Authority pays the balace from the Cliical Negligece Scheme for Trusts. As at May 2000, it had 4,700 claims outstadig, totallig 1.5 billio. These figures will grow as the scheme matures. Trusts fud the scheme by payig the equivalet of premiums, ad i retur receive assistace with the costs of cases above a certai amout their 'excess'. Trusts are free to choose from a rage of excess levels, although as with isurace the size will affect the cotributio payable. Scheme members pay all costs of settlemets below their excess level ad 20 per cet of costs above it, up to a threshold. The Litigatio Authority pays the balace o behalf of the scheme. The scheme operates o a 'pay as you go' basis ad does ot build up fuds, i the way a commercial isurer must. The scheme also has cliical risk maagemet stadards agaist which member Trusts are assessed (paragraphs 1.12 to 1.14). The Existig Liabilities Scheme iitially covered all NHS bodies' liabilities for each claim for icidets that occurred before April 1995, where the estimated settlemet costs were above 10,000, ad is fuded by the Departmet of Health through the Litigatio Authority. As at May 2000, the scheme had 6,800 claims, totallig 3.4 billio, outstadig. The scheme is curretly the more active of the two, but will dwidle i size with the passig of time because of the cut-off date. Before April 2000, Trusts ad health authorities were resposible for maagig may claims but after that date the Litigatio Authority took resposibility for maagig ad fudig all claims I additio, i 1996 the Litigatio Authority took over o behalf of the Secretary of State for Health resposibility for cliical egligece claims agaist the former Regioal Health Authorities (kow as the Ex- RHA Scheme). These claims, of which there were fewer tha a thousad, maily arose from the activities of postgraduate teachig hospitals I admiisterig the poolig schemes for cliical egligece, the overall aims for the Litigatio Authority are to promote the highest possible stadards of patiet care ad to miimise the sufferig resultig from ay adverse icidets that do occur. The detailed objectives iclude a requiremet that the Litigatio Authority esure that, where actual cliical egligece has occurred, patiets have appropriate access to remedies icludig, where proper, fiacial compesatio Sice 1997, the Cliical Negligece Scheme for Trusts has had risk maagemet stadards for members i Eglad. The purpose of those stadards is to esure that risk maagemet is coducted i a focused ad effective fashio, ad thus to make a positive cotributio towards the improvemet of patiet care. There are ow 12 stadards (Figure 4). The Litigatio Authority plas to develop existig stadards i to icorporate key aspects of the Departmet's Cotrols Assurace Ifectio part oe 9

14 4 5 Risk maagemet stadards set by the Cliical Negligece Scheme for Trusts 1 The board has a writte strategy i place that makes their commitmet to maagig cliical risk explicit. Resposibility for this strategy ad its implemetatio is clear. 2 A cliical icidet reportig system is operated i all medical specialties ad Cliical Support Departmets. 3 There is a policy for rapid follow-up of major cliical icidets. 4 A agreed system of maagig complaits is i place. 5 Appropriate iformatio is provided to patiets o the risks ad beefits of the proposed treatmet or ivestigatio, ad the alteratives available, before a sigature o a coset form is sought. 6 A comprehesive system for the completio, use, storage ad retrieval of medical records is i place. Record-keepig stadards are moitored through the cliical audit process. 7 There are maagemet systems i place to esure the competece ad appropriate traiig of all cliical staff. 8 A cliical risk maagemet system is i place. 9 There are clear procedures for the maagemet of geeral cliical care. 10 There is a clear documeted system for maagemet ad commuicatio throughout the key stages of materity care. 11 There are clear systems for the protectio of the public ad service users i trusts providig metal health services. 12 There are clear procedures for the maagemet of cliical risk i trusts providig ambulace services. Source: NHS Litigatio Authority Achievemet of Cliical Negligece Scheme for Trusts' risk maagemet stadards at 31 March 2000 CNST achievemet Number of Trusts Discout o (percetage) cotributios No level 80 (24 per cet) Nil Level (66 per cet) 10 per cet Level 2 33 (10 per cet) 20 per cet Level 3 1 (0 per cet) 25 per cet Cotrol Stadard ad of Health Service Circular 2000/02. This is i respose to a recommedatio from the Committee of Public Accouts i its report o The Maagemet ad Cotrol of Hospital Acquired Ifectio i Acute NHS Trusts i Eglad The scheme assesses Trusts' performace agaist the stadards, ad has give each feature of the stadards a priority level. Level 1 features represet basic elemets of risk maagemet that should be easily attaiable; ad levels two ad three are assessed progressively whe a Trust has bee otified that it has achieved the previous level. Those meetig the stadards i part or wholly are allowed discouts agaist their subscriptio to the scheme, accordig to the level attaied. The umbers of Trusts achievig the various levels ad ejoyig the resultat discouts o cotributios are show at Figure The Auditor Geeral for Wales' report, Cliical Negligece i the NHS i Wales 7 set out measures the Welsh Risk Pool have put i place to reduce the risk of egligece occurrig i hospitals throughout Wales. At the time of fieldwork for this report, the Welsh Risk Pool had developed stadards i 16 areas, i most cases where there are kow to be high levels of risk. Eleve of those areas are geeric, coverig aspects such as patiet records, complaits, adverse icidet reportig ad supervisio of juior staff, ad five relate to cliical specialist areas, icludig materity, operatig theatres ad accidet ad emergecy. Uderpiig each stadard is a list of procedural areas for assessmet. Sice 2000, Trusts' performace agaist the risk stadards has determied the rate of excess they pay agaist claims. The Legal Services Commissio 1.15 The Legal Services Commissio is a ew executive odepartmetal body created uder the Access to Justice Act 1999 to develop ad admiister two schemes i Eglad ad Wales. These are the Commuity Legal Service, which replaces the scheme of civil legal aid; ad the Crimial Defece Service, which will from April 2001 replace the system of crimial legal aid. part oe Total 331 (100 per cet) Source: NHS Litigatio Authority 1.16 The overall aim of the Legal Services Commissio is to deliver access to justice. It fuds ay claimat able to satisfy its meas, merits ad cost-beefit tests, as set out i its fudig code. I practice the majority of people who meet those criteria are either i receipt of state beefits or are childre. Claims must have at least a 50 per cet chace of success, as estimated by the claimat's lawyer ad satisfy cost-beefit criteria. Those criteria will geerally be based o the estimate by the claimat's solicitor Forty-secod report, , recommedatio (iv) 7 Cliical Negligece i the NHS i Wales, February 2001

15 1.17 The Commissio operates a quality assurace scheme for solicitors' offices providig legal advice to claimats. The purpose is to provide a accessible ad quality assured service to cliets, while at the same time deliverig improved value for moey for taxpayers. It ivolves awardig a quality mark to solicitors' offices that meet criteria for competece ad maagemet. These criteria iclude a requiremet that the practitioer is a member of oe of the two cliical egligece paels ru by the Law Society ad Actio for Victims of Medical Accidets. From 1999, the Commissio has oly provided legal aid i ew cases where the firm istructed has had a specialist level quality mark i cliical egligece (formerly kow as a frachise). I the Commissio fuded 7,375 ew claims ad had gross expediture of 62 millio for closed claims. Developmets i hadlig claims for cliical egligece 1.18 Sice 1998, there have bee importat chages that affect the hadlig of cliical egligece claims, icludig: to improve the quality of legal advice it obtais, the Litigatio Authority has appoited a pael of solicitors ad the selected amed parters ad feeearers withi those practices. It maages claims o the basis of regular reports from its solicitors ad attedace at cofereces with cousel; the Legal Services Commissio has exteded its quality assurace scheme to the specialist area of cliical egligece ad has made the award of a specialist quality mark (formerly a frachise) a prerequisite to receivig legal aid fudig; i April 1999, the Woolf Reforms of the civil justice system icorporated the Pre-actio Protocol for the Resolutio of Cliical Disputes i court rules ad procedures for the high court ad couty courts. The protocol aims to ecourage a climate of opeess whe somethig has "goe wrog" with a patiet's treatmet or the patiet is dissatisfied with that treatmet ad/or the outcome; ad to icrease the prospects that disputes ca be resolved without resort to legal actio. It provides geeral guidace o how a more ope culture might be achieved whe disputes arise. Ad it recommeds a timed sequece of steps for claimats ad healthcare providers (ad their advisers) to follow whe a dispute arises. If proceedigs are issued, it will be for the court to decide whether o-compliace with the protocol should merit sactios. The Lord Chacellor's Departmet's emergig fidigs of the revised court rules ad procedures suggest that preactio protocols are workig well to promote settlemet before issue of proceedigs ad are reducig the umber of ill-fouded claims; ad from April 2000, the Access to Justice Act has allowed solicitors to claim a success fee whe ruig a coditioal fee agreemet. This ca be recovered from the losig side if the claim is successful. People ieligible to receive legal aid for fiacial reasos may use this facility to pursue cliical egligece claims without public fudig. Why we udertook the study 1.19 Provisios 8 to meet the costs of cliical egligece claims have doubled from 1.3 billio i to 2.6 billio i , partly because of better accoutig for such provisios, ad partly because of icreases i the scale of damages awarded followig judgemets i Wells v Wells 9. Further, there is a tred towards icreased litigiousess o the part of patiets, as evideced by a research fidig that the rate of cliical egligece claims icreased by 72 per cet i oe regio betwee 1990 ad I his 1996 Access to Justice report, Lord Woolf stated that it was i the area of medical egligece that the civil justice system was failig most cospicuously to meet the eeds of litigats i a umber of aspects. I their 5th report of Sessio , the Committee of Public Accouts cocluded that the system for dealig with those ivolved i cliical egligece claims must be cost-effective, quick, efficiet, fair ad humae. I additio, we established that there was little iformatio o the total umber of claims. Ad there was very little aggregated iformatio about the time it takes to settle claims ad the costs that have bee icurred. 8 The accoutig term for a estimate of a future settlemet arisig from a past evet. Sice the fiacial year , it idicates the likely settlemet sum, discouted to show the et preset value. 9 Wells v Wells (1999) 1 AC Curret cost of medical egligece i NHS hospitals: aalysis of claims database, Fe, P. Diaco, S. Gray, A. Hodges, R. ad Rickma, N., British Medical Joural 2000; 320: This states that the rate of claims per 1,000 fiished cosultat episodes rose from 0.6 to 1.03 betwee 1990 ad part oe 11

16 1.20 Cliical egligece is ot just a issue for the NHS i Eglad. It is also a issue for the Natioal Health Services i Scotlad, Wales ad Norther Irelad, which have also made fiacial provisios to meet likely future costs. As with the NHS i Eglad, o aggregated iformatio has previously bee available o the time ad cost take to settle claims i those coutries. For this reaso, as well as the differet legal eviromets or orgaisatioal arragemets i Scotlad, Wales ad Norther Irelad, it has ot bee possible to make meaigful comparisos of the positio i the four coutries O 23 February 2001 the Auditor Geeral for Wales published his report Cliical Negligece i the NHS i Wales which, for the first time, provides iformatio o the time ad cost of settlig claims i that coutry. Where available, we have used this comparative iformatio i our report. The Norther Irelad Audit Office is also workig o a study of cliical egligece i Norther Irelad. That report is due to be published later i 2001, so has ot bee reflected i this report. O 18 December 2000, the Auditor Geeral for Scotlad published his report Overview of the Natioal Health Service i Scotlad which set out the risig tred of fiacial provisios to meet cliical egligece claims. His report referred to, but did ot focus o, the time or cost of settlig claims. Scope ad methodology 1.22 We examied: the umber of claims, the costs of settlig them ad the time take (Part 2); 1.24 Neither have we reviewed the merits of a o-fault compesatio scheme (a scheme where persoal ijury victims are compesated without the requiremet that they prove their ijuries were the fault of somebody else). Such a scheme is supported by the British Medical Associatio. The govermet, however, opposes it o a umber of grouds. It cosiders that the burde of provig that egliget medical treatmet had caused ijury should be o less tha for egligece i other persoal ijury cases; that such schemes do ot deliver what patiets say they wat (a explaatio ad a apology); ad that such a scheme would ecourage eve greater umbers of claims, ad therefore be sigificatly more costly tha the curret arragemets. As this policy is clear, we have ot cosidered the merits of the argumets i this examiatio We were greatly assisted i the course of our study by a expert pael represetig all costituecies i the field of cliical egligece, to whom we record our thaks (Appedix 3). Our methodology is set out at Appedix This report does ot examie measures take to prevet egliget icidets from happeig. At the time of our study, some iitiatives, such as the cliical goverace programme, were uderway but may strads were i their early stages of implemetatio. Other elemets, for example the recordig ad reportig of adverse icidets, were beig expaded. Appedix 2 summarises the mai iitiatives take by the Departmet of Health sice We pla two further studies to examie the success of these iitiatives: oe will look at cliical goverace i hospitals, the other at cliical goverace i primary care. patiets' access to remedies 11 (Part 3); ad how patiets' claims are maaged (Part 4) The study was restricted to claims agaist NHS hospitals i Eglad. May claims for cliical egligece are agaist geeral medical ad detal practitioers. But we did ot examie those claims because the fiacial cosequeces are ot bore directly by the NHS ad the NHS does ot hadle them. part oe I this report we have used the term "patiets" to deote claimats ad their represetatives.

17 Part 2 The umber of claims, the costs of settlig them ad the time take 2.1 This part examies: the umber, value, type ad causes of claims; how log claims have take to settle; the costs of settlemet; ad addressig the backlog of claims. 6 There were some 23,000 cliical egligece claims outstadig agaist the NHS at 31st March 2000 Existig Liabilities Scheme (8,000 claims) Below the Excess 2 (1,200 claims) Cliical Negligece Scheme For Trusts (15,200 claims) The umber, value, type ad causes of claims (a) Number of claims 2.2 Neither the Litigatio Authority or the Departmet of Health kow how may claims there are at ay oe time. This is because idividual Trusts ad health authorities hold iformatio o ope claims (that is, those ot yet resolved) below their excess. However, the Litigatio Authority holds iformatio o all other claims, both ope ad closed. Uder the terms of their membership of the Cliical Negligece Scheme for Trusts, Trusts are required to provide the Litigatio Authority with details of all claims they settle below their excess level but i practice this is doe icosistetly. We estimate that at 31 March 2000 there were some 23,000 ope claims (Figure 6) ad that the NHS received 10,000 ew claims for cliical egligece i (b) Value of claims 2.3 Iformatio o the total fiacial provisios made for claims ad the amout paid out i ay oe year is icluded i the NHS's Summarised Accouts. These accouts are prepared i accordace with accoutig covetios, ad show the discouted preset value for all claims o a expected value basis, that is, adjusted for the probability of settlemet. I , the Summarised Accouts 12 showed that the provisio for Above the Excess 1 (6,800) Above the Excess 1 (4,400) Below the Threshold Excess 2 2 (10,800) Source: 1. The NHS Litigatio Authority 2. Natioal Audit Office Survey of Trusts ad health authorities cliical egligece claims was 2.6 billio provisios to meet outstadig claims for the NHS i Scotlad were 38 millio, i Wales they were (icludig creditors) 111 millio ad i Norther Irelad 100 millio. 2.4 The Litigatio Authority's databases record the predicted settlemet value of all claims it kows about. The total value of outstadig claims with a 50 per cet or higher chace of succeedig at 31 March 2000 was 4.3 billio. This figure differs from the provisio i the Summarised Accouts for because, i accordace with Fiacial Reportig Stadard 12, the provisios liked to claims represet the value of claims discouted from the expected dates of settlemet to their preset value ad is calculated o a expected value basis. It is, however, comparable with provisios for previous years, ad it shows a icrease of 230 per cet sice (Figure 7). part two 12 At the time of publicatio, the NHS Summarised Accouts for were uaudited. 13

18 7 8 Provisios made to cover the likely costs of settlig claims for cliical egligece Provisios made to cover the costs of settlig claims for cliical doubled i the last four years. Total provisio for cliical egligece ( billio) Year of accout (edig 31 March) Provisios based o absolute value of claims Provisios based o discouted value of claims (FRS 12) Estimate of discouted likely costs of icidets icurred but ot reported Note: 1 The effect of Fiacial Reportig Stadard 12 is show i the bars for ad whe it was applied to the NHS. 2 There are o discouted estimates for icidets icurred but ot reported for or Source: Summarised Accouts for Eglad, to Total charges to icome ad expediture accouts for provisios for cliical egligece Gross charges to icome ad expediture ( millio) 1,500 1, Year of accout 2.5 Because claims ca be lodged several years after the evet to which they relate, the Comptroller ad Auditor Geeral's Report o the Summarised Accouts for Eglad for recogised additioal potetial liabilities of aroud 1 billio. Latest actuarial estimates commissioed by the Litigatio Authority suggest that these likely liabilities have ow rise to 1.3 billio. 2.6 Total charges to NHS icome ad expediture accouts for fiacial provisios to reflect the future cost of cliical egligece claims have icreased very sigificatly from 200 millio i to 1.5 billio i (Figure 8). This icrease is strogly related to the umber of claims received i ay oe year, but it also icludes icreases i provisios made before a claim is settled. These usually arise as the facts of a claim become apparet or whe the level of court settlemets shows the eed for upward adjustmets i existig provisios. The 1998 judgemet i Wells v Wells 13 ruled that claims for future loss, icludig care, should assume that compesatio would be ivested i idex-liked gilts, rather tha equities. The result was that the scale of may of the larger birth-related claims agaist the NHS icreased by betwee 25 per cet ad 40 per cet, depedig o the life expectacy of the child. (c) Type of claims 2.7 The largest volume of claims reported to date uder the Cliical Negligece Scheme for Trusts arises where claimats allege that egligece has led to a fatality. This category accouts for 14.1 per cet of all claims still uresolved at 31 May Uder the Existig Liabilities Scheme the most commo category of ijury is that of cerebral palsy, at 16.9 per cet of all ope claims, ad fatalities accout for oly 7.4 per cet of ope Existig Liabilities Scheme claims. These differeces are largely explaied by the fact that the Existig Liabilities Scheme is a mature scheme ad the Cliical Negligece Scheme for Trusts is oly five years old ad will ot have the full rage of claims util aroud I particular, claims relatig to brai damage ad cerebral palsy will be uder-represeted as they ca be submitted up to 21 years after the date of the icidet, ad i some cases there is o limitatio o submissio. 2.8 Claims for icidets leadig to brai damage or cerebral palsy are by far the most expesive for the NHS, both for outstadig ad recetly closed claims. This is because if egligece is prove the amout of the settlemet will take accout of the cost of private educatio ad care for the patiet for the rest of their life. part two Note: The accouts were ot prepared o a comparable basis. Source: Summarised Accouts for Eglad, to Wells v Wells (1999) 1 AC 345.

19 2.9 The relatively small proportio of claims that are i respect of cerebral palsy ad brai damage accout for a high proportio of the total value of claims: Eleve per cet of claims closed i arose from cerebral palsy or brai damage ijuries; They accouted for 44 per cet of settlemets by value; ad For ope Existig Liabilities Scheme claims, the 26 per cet of claims for cerebral palsy or brai damage ijuries represeted 80 per cet by value. This meas that the bulk of claims (89 per cet of those closed i ad 74 per cet of ope Existig Liability Scheme claims) accout for a relatively smaller proportio of the total value of claims. (d) Causes of claims 2.10 Although the Litigatio Authority holds data o the causes of icidets that lead to the claims it hadles, there is o sigle source of iformatio about claims maaged by idividual Trusts. This is oe of the areas we pla to cover i our forthcomig examiatio of cliical goverace. The Auditor Geeral for Wales has, however, reported o the causes of claims made i Wales I his report "Cliical Negligece i the NHS i Wales", the Auditor Geeral for Wales examied a sample of 94 claims relatig to adverse medical icidets. This foud that the most frequet alleged or admitted cause of such icidets was egligece due to misdiagosis, which ofte leads to either delay i treatmet or iappropriate treatmet. Negligece was also ofte alleged or admitted to have bee caused due to techical or surgical mistakes made before, durig, or after the operatio (Figures 9 ad 10). 10 Mai alleged or admitted causes of egligece i Wales, ad the evets leadig to them Mai cause Evets cotributig Misdiagosis Doctor fails to take a x-ray Doctor uderestimates patiet's cocers Failure to recogise sigs of illess X-rays ot beig read properly, or beig difficult to read Poor commuicatio betwee cliicias Operatio, Failure to liste to the patiet's requests techical Failure to perform pre-operative checks Failure to provide pre- or post-operative explaatios Iadequate supervisio of istrumets - dislodged or ot removed Uecessary or iappropriate operatio i some cases due to iadequate supervisio of cliicias Wrog or faulty use of aaesthetic Poor commuicatio betwee cliicias Operatio, Damage to orgas, muscles, or erves surgical Failure to admiister appropriate drugs durig operatio Icomplete operatio Poor post-operative care pai ad sufferig Miscommuicatio betwee patiet ad doctor patiet ever coseted to operatio or failure to alert patiet to risks ivolved Drug Drugs admiistered to perso with kow complicatio allergies or perso o kow other medicatio Drugs admiistered iappropriately itraveously, orally etc. No iformatio provided to patiet o side effects of medicatio Failure to liste to patiet's cocers Delay i Admiistrative error treatmet Lack of cotiuity of care - chagig of doctors ad urses Other, Doctor/urse misreadig medical otes techical No correct istrumets available Woud Iadequate cleasig of woud ifectio 9 Frequecy of alleged or admitted causes of cliical egligece foud i Wales Misdiagosis Operatio, techical Operatio, surgical Drug complicatio Delay i treatmet Iappropriate discharge from hospital Mistreatmet Other Other techical Other Potetial accidet i the waitig room Iappropriate Poor commuicatio betwee cliicias discharge from hospital Source: Auditor Geeral for Wales, aalysis of 94 claims Woud ifectio Post operative complicatios part two Source: Auditor Geeral for Wales, aalysis of 94 claims 15

20 2.12 The Natioal Audit Office Wales aalysis also foud that a sigificat cotributor was the icidece of potetially avoidable errors by cliicias ad others, associated with admiistrative, commuicatios, or wider systems issues, as opposed to strictly cliical judgemet or techical error. Such "o-cliical" errors raged from breakdows i commuicatio betwee cliicias, patiets ad o-cliicias to straightforward admiistrative failigs such as losig patiet records. There was evidece i 39 of the 94 claims examied of o-cliical errors (Figure 11). Ad while it is ot always straightforward to distiguish betwee cliical ad o-cliical errors, the aalysis suggested that withi the 39 claims there were 15 cases where ocliical errors were either the direct cause of the alleged or admitted egligece or they were the sole reaso for a settlemet. 11 Aalysis of o-cliical errors i Wales Type of o-cliical error No. of istaces Poor documetatio of cliical procedures udertake 15 Poor commuicatio betwee cliicias 12 Poor commuicatio betwee cliicia ad patiet 11 Poor documetatio of commuicatios with patiet 8 Iappropriate perso givig advice to patiet 3 Iadequate supervisio of cliicias 2 Iappropriate perso udertakig cliical procedure 1 Note: Some cases featured more tha oe type of o-cliical error. Source: Auditor Geeral for Wales, aalysis of 94 claims Time take to settle claims (a) The Cliical Negligece Scheme for Trusts 2.13 The scheme covers oly claims where the related icidet occurred after April 1995, ad has relatively few closed claims. There is therefore ot yet a reliable picture of how log it takes to settle the full rage of claims uder the Cliical Negligece Scheme for Trusts. By May 2000, 1,153 claims had bee closed, of which claimats had withdraw 83 per cet We estimate that for claims closed i the average time take from claim agaist the Trust or health authority to paymet of damages was five ad a half years, ad the average total time from icidet to paymet of damages was just over seve years (Figure 12). Eight ad a half per cet of cases where damages were paid took more tha 10 years from claim to settlemet. These averages exclude cases of cerebral palsy ad brai damage, where claims took a average of 12.1 ad 10.3 years respectively from icidet to paymet of damages. part two (b) Existig Liabilities Scheme 2.14 The Litigatio Authority's database of Existig Liabilities Scheme claims does ot iclude reliable iformatio about whe all claims were made agaist Trusts or health authorities, or whe they were settled. This is largely because, whe the Authority took o the scheme, it was ot cosidered essetial for the future maagemet of claims to record the date whe the Trust or health authority first received the claim. The Litigatio Authority was at that time a ew ad developig body; ad the Departmet of Health told it that the priority of dealig with the backlog of claims took precedece over all other work. It is ot possible, therefore, to calculate the precise legth of time that claims have take to settle without goig back to Trusts ad health authorities o a case by case basis. The database does, however, provide reliable data about whe the icidet givig rise to the claim occurred, ad whe the Litigatio Authority reimbursed the Trust or health authority for moey paid to patiets. Usig the methodology set out at Appedix 1 we estimated the average time take from receipt of claim to settlemet I Wales the average time from claim to paymet of damages for claims closed i was two ad a half years. 14 This figure is ot directly comparable with that for Eglad, because: As oted at paragraph 1.9, the Existig Liabilities Scheme covered oly claims above 10,000 arisig from icidets that occurred before April The Welsh figure was draw from a sample of claims closed i irrespective of the date of occurrece ad comprised 78 per cet claims above 10,000 ad 22 per cet below 10,000. The Litigatio Authority believes that the NHS i Eglad settles claims valued at below 10,000 more quickly tha it does those valued above that figure, ad therefore that, if they were icluded i the Eglish calculatio, the resultig average time from claim to settlemet would be shorter; The Litigatio Authority is still dealig with a backlog of old claims that were made before it was established, ad were origially hadled by health authorities ad NHS Trusts. This meas that settlemets, both i ad i future, are likely to iclude a disproportioate umber of claims that have bee outstadig for a log time. The Cliical Negligece i the NHS i Wales, February 2001, paragraph 3.31

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