The True Cost of Medical Negligence

An article published on BBC News today has stated that the NHS in England is facing paying up to £4.3bn in legal fees in order to resolve ongoing medical negligence claims. These figures were provided to the BBC following a Freedom of Information request as the Department of Health has pledged to tackle the “unsustainable rise” in the cost of medical negligence claims.

This headline is in stark contrast to the picture portrayed by the recent annual reports published by NHS Resolution, the body responsible for resolving claims against the NHS. These reports demonstrate that the fees of Claimant lawyers actually fell by £31.8m between April 2017 and April 2018, then by a further £24.3m in April 2019. During the same period, the NHS’s own legal costs have increased by £13.9m.

It is important, therefore, to put the BBC’s figure of £4.3n into context. Although the article does not make this clear, it is likely that this figure relates to the ongoing cost of all current medical negligence claims regardless of whether the NHS is likely to successfully defend these claims or not. NHS Resolution’s own figures show that more than 44% of claims resolved in 2018/19 resulted in no damages being paid to the Claimant and, therefore, no legal costs would have actually been paid.

Whilst it cannot be denied that the cost of medical negligence claims has an impact on the NHS, the reason for bringing these claims and the associated costs need to also be considered. For many of our clients, litigation is the last resort after they have already tried to raise their issues with the healthcare professionals involved in their case; often a complaint has already been made and the hospital has refused to acknowledge or apologise for any shortcomings in the treatment.

More often than not patients will feel that they have not been listened to and that bringing a compensation claim will be the only way to ensure that the NHS learns from its mistakes and prevents other patients from being harmed in similar circumstances.

On other occasions, patients will be unaware of what went wrong in their care, so will turn to the claims process in order to get the answers they need.

Much of this could be avoided had the Duty of Candour been adhered to.

The main factor for increasing costs in a negligence claim will be the time it takes to reach a settlement. If the case progresses to trial then the costs will be significantly higher than if the matter can be resolved prior to the issue of court proceedings. Therefore the earlier the NHS completes their own investigation, acknowledges their mistakes, and offers to compensate for the damage that they have caused, the lower the legal costs will be.

It is also important to consider the human cost of medical negligence as it is all too easy to reduce the discussion down to monetary figures. Often the victims of negligence have suffered devastating, life-changing injuries and find that their livelihoods are severely affected by the events. It is only right that the NHS acknowledges these mistakes and does all they can to restore these individuals to the position they would have been in but for their failings.