The NHS’s defence organisation, NHS Resolution, has published its annual report and accounts for the year ending 31st March 2022. The report reflects on NHS Resolution’s efforts to ‘drive down litigation’ and reduce the cost of compensating patients who have been injured by negligent hospital and GP care, and its role in helping the NHS learn from mistakes and improve patient safety. Key statistics from NHS Resolution’s Annual Report 2021-2022 Some of the headline figures relating to medical negligence claims from NHS Resolution’s 2021-2022 Annual Report include: The ‘annual cost of harm’ based on medical negligence claims covered by the Clinical Negligence Scheme for Trusts (CNST) which handles claims against NHS trusts, was £13.3 billion. This figure has increased from £7.9 billion in 2020/21. NHS Resolution point out that the increase partly reflects changes in HM Treasury’s discount rates which affects the value of compensation claims which involve lifelong severe disability. The total number of clinical negligence claims and reported incidents received by NHS Resolution during the year increased from 13,351 to 15,078. This included 4,794 new and existing GP negligence claims, as NHS Resolution has taken over responsibility for compensating patients who have been injured as a result of negligent GP care. Just over £2.4 billion was paid out for all types of clinical negligence claims in 2021/22, compared with just over £2.2 billion the year before. This included: £1.77 billion in compensation to claimants (injured patients or their bereaved families); £470.9 million in claimants’ legal costs; £156.6 million in the NHS’ legal costs. Payments under CNST for medical negligence claims against NHS trusts (eg hospital negligence claims) increased by 7% to just over £2.2 billion. The increase related mostly to high value claims (with compensation over £3.5 million). Compensation claims were most common in: obstetrics (childbirth/maternity) (1,243); emergency medicine (1,229); orthopaedic surgery (for broken bones) (1,203). Maternity-related claims accounted for: 62% (by value) of all secondary (hospital) care clinical negligence claims that were notified to NHS Resolution in 2021/22; 12% of claims by volume (numbers); 38% of all clinical negligence payments in 2021/2022 (on claims notified in past years); 60% of the total clinical negligence ‘cost of harm’; 70% of the total clinical negligence provision for future payments. In 2021/22, NHS Resolution received only 22 medical negligence claims related to Covid-19 under their Covid-19 indemnity scheme, compared with 15 the previous year. 77% of claims were ‘resolved’ in 2021/22 without court proceedings. Keeping claims out of court is one of NHS Resolution’s main aims, and they use the term ‘resolved’ to include claims which reach settlement or trial, but also claims which discontinue or are concluded without payment of compensation (damages). 16,484 (clinical and non-clinical) claims were ‘resolved’ in 2021/22 compared with 15,712 in 2020/21. 48.6% of these ‘settled’ without payment of any compensation. NHS Resolution attribute the high number of claims which concluded without the need for court proceedings to their use of other dispute resolution methods, and continued cooperation with lawyers, building on their change of approach during the pandemic. NHS Resolution emphasised that despite their aim to conclude as many cases as possible out of court, they remain rigorous in investigating medical negligence claims. The report highlights two cases in which patients were prosecuted and given prison sentences after they were found to have seriously exaggerated their disability in fraudulent claims against the NHS. NHS Resolution increased its provision for future payments from £85.2 billion to £128.6 billion, with the following explanation: this increase relates almost entirely to changes to HM Treasury’s discount rates; the provision figure is simply an accounting estimate of what it would cost now to pay all NHS Resolution’s known/estimated future claims liabilities; the provision includes guaranteed lifelong payments in past, present and anticipated future severe injury claims, and will change depending on the actual lifespan of the injured children; the figure also changes year by year to reflect legal, political and financial circumstances, such as changes in the discount rate which added over £43 billion to this year’s projected figure; NHS Resolution doesn’t collect, hold or set aside money to meet this provision, as all payments are made on a pay-as-you-go basis as they become due, from the current year’s budget. In fact, in 2021/22, as the number and value of claims settlements were lower than previously assumed, NHS Resolution’s medical negligence schemes underspent by £224 million against their budget. Early Notification Scheme – more evidence needed of financial help to families of injured babies NHS Resolution’s Early Notification (EN) Scheme for babies with birth injury leading to cerebral palsy continues and has now entered its fifth year. Its focus is now limited to cases where HSIB’s completed investigation suggests that a baby’s negligent birth injury has left them with harm from HIE, confirmed by an abnormal MRI scan, and who are likely to have long term needs and be entitled to high value financial compensation payments. Despite NHS Resolution’s claim that EN has led to significant numbers of early admissions of liability and interim payments for the families of these catastrophically injured children, the report doesn’t make clear how many families have received early financial support, but says that only £10 million was paid out in total this year on all cases which fell under the EN Scheme. It is hoped that NHS Resolution will substantiate these claims with details of the number and size of interim payments that are being made, when it reports on the impact of the EN Scheme later this year. The Annual Report also suggests that we can expect NHS Resolution’s report on the Clinical Negligence Scheme for General Practice (CNSGP) which handles claims for injury arising from GP negligence, and a new ‘Better Births’ maternity improvement report is also expected from NHS England later this year. If you have been severely injured as a result of medical negligence or have been contacted by NHS Resolution or HSIB after the birth of your child, you can talk to one of our experienced solicitors, free and confidentially, for help and advice by contacting us here.
