Where next for clinical negligence litigation?

ARAG supports the work of the Society of Clinical Injury Lawyers (SCIL) in promoting best practice in clinical negligence claims, influencing public policy to benefit injured people and advancing access to justice and patient safety.

We asked SCIL Chair and Partner at Ashtons Legal LLP, Sharon Allison to look to the future and what can be done to reduce the financial and human costs of clinical negligence.

As Westminster’s summer recess approaches, discussion about the long-awaited introduction of fixed recoverable costs in lower value clinical negligence cases seems to have gone a little quiet... for now.

The government has many other fish to fry as the current parliamentary session draws to a close, but that doesn’t mean the issue of clinical negligence costs has been forgotten entirely.

In May, a House of Commons Public Accounts Committee report on health and social care spending highlighted the cost to the NHS, calling the proportion that goes to cover claimants’ legal costs “astronomical”.

The article accompanying the report’s publication somewhat misleadingly referred to £536 million awarded to claimants in 2023/24 as money that “...goes to their lawyers” when a large share of the sum was obviously spent on expert witnesses, court fees, ATE insurance premiums and various other expenses associated with their claims. This widespread misunderstanding of the costs associated with medical injury claims does not help those who are charged with seeking solutions to the issue.

Nonetheless, the Committee called upon the Department of Health and Social Care to set out a plan, within the next six months, to reduce patient harm, improve safety across the NHS and manage the costs of clinical negligence more effectively, including “...introducing a mechanism to reduce legal fees.”

Two of those months have passed already without any indication that such a plan is imminent.

The launch of Fit for the Future, the government’s much broader 10-year strategy for the NHS, may have been overshadowed by other news, but closer scrutiny of that plan reveals very little reference to the costs of medical malpractice.

The term ‘clinical negligence’ warranted just three passing references in the 168-page report, which did reveal that David Lock KC has been asked to help the government improve patients’ experience of clinical negligence and provide expert advice on the rising legal cost of claims, ahead of the Department of Health and Social Care (DHSC) review, due in the autumn.

SCIL and our membership remain committed to reducing unnecessary cost in all cases, so it was encouraging to hear the deputy director of claims at NHS Resolution talk about the emergence of a ‘professional, trusting and respectful’ relationship between claimants and defendants, at our conference in Birmingham, last month.

Kamal Bedi, said that increased collaboration has had a tangible impact on the proportion of claims now resolved without going to court. In the 2023-24 reporting year, just 19% of cases were settled in a courtroom whereas, just seven years ago, that share was almost a third.

Whether cases must go to court or not, the fact remains that attacking claimant’s legal costs can only ever address a small portion of the financial burden that medical mistakes create and will never reduce the harm done in the first place.

This is truly where governments' focus should be, first and foremost in the reduction of avoidable harm space rather than exploring ways to reduce the cost of claims by restricting access to justice. It is simply the wrong way round. A safer NHS will lead to fewer claims. It is as simple as that.

Even without focussing on the more damaging, higher value cases, reducing the overall number of claims necessary by just 10 per cent, across the board, could save the NHS almost £300 million a year, which is considerably more than half the total costs the Public Accounts Committee claimed “goes to their lawyers”

The SCIL membership will, I am sure, continue in the spirit of collaboration that has seen fewer cases needing to be resolved in court. At the same time, we hope for the improved patient safety and learning from others’ mistakes that will see the need for fewer claims altogether.