Handling clinical negligence claims in England

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1 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

2 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

3 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.

4 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

5 (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

6 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

7 (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.

Handling clinical negligence claims in England. REPORT BY THE COMPTROLLER AND AUDITOR GENERAL HC 403 Session 2000-2001: 3 May 2001

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