Reducing Legal Costs for the NHS

Reducing Legal Costs for the NHS

Everyone knows that the NHS is under financial pressures. A popular complaint is that compensation claims, and more specifically, claimant legal costs, take money away from provision of healthcare services. However, Kym Provan, Partner and head of Enable Law’s Southampton clinical negligence team, explains here how an earlier admission of liability could save the NHS substantial sums of money as well as providing much needed help for those who have been injured by negligent medical treatment.

Legal Costs in Medical Negligence Claims 

Litigation is expensive and medical negligence cases are particularly so. They frequently rely upon expert evidence from multiple medical disciplines and can take years to conclude. Claimant medical negligence lawyers are often criticised in the popular press for being responsible for huge legal fees that have to be paid by the NHS in relation to compensation claims brought by those who have been injured because of substandard medical care.   

Over the years successive governments have brought in various measures to try to limit the level of legal costs that have to be paid by the losing party in litigation. In 2013, the way in which personal injury and clinical negligence cases are funded changed, so that the injured party became responsible for paying a success fee to their solicitor if their claim was successful, and the insurance premium necessary to fund the expert reports needed to prove their claim. Previously these costs had to be met by the losing Defendant. 

Also in 2013, Costs Budgeting and the requirement for legal costs to be proportionate to the claim brought were introduced. Essentially the courts sought to try to control the level of costs that a losing party had to pay for a case and to make sure that those costs were proportionate to the value of the claim. Fixed costs have been introduced for lower value personal injury claims, and this scheme has now been extended so that it applies to the majority of personal injury cases with a value of £100,000 or less. These restrictions are due to be extended to apply to most clinical negligence claims imminently.  

Despite this, there is no escaping the fact that the legal costs payable by the NHS for clinical negligence claims are very substantial. In the financial year 2023/2024, NHS statistics show that they incurred liability for £545,140,288 of Claimant legal costs. During the same year, they also incurred £166,889.578 of their own legal costs in contesting compensation claims. This totals in excess of £700 million in legal costs in a single year and accounts for just over 25% of the total spend on clinical negligence compensation claims. (Compensation payments incurred during the same period were a little in excess of £2.1 billion.)  Annual statistics - NHS Resolution

A key factor that determines the level of legal costs, is the length of time that the cases are contested for. Obviously the NHS, as a public body, should rightly contest claims where there is a valid and realistic defence. However, I am involved in many cases every year, where I seriously question why they continue to be disputed.

Duty of Candour and Internal Investigation Reports 

Since 2014, there has been a legal duty of candour applicable to all NHS Trusts (and other healthcare providers since 2015). It is a criminal offence not to tell a patient or their family when something has gone wrong. NHS Trusts also have processes in place to carry out an internal investigation if someone suffers significant injury unexpectedly. Reports are produced detailing the conclusions of these investigations (these reports have various names such as Root Cause Analysis report, (RCA) Serious Untoward Incident report, (SUI) Serious Incident Requiring Investigation report (SIRI) etc. 

Declining to Admit Failings Identified in an Internal Investigation

You would think that if an internal investigation concludes that mistakes were made in the treatment provided to a patient, and that the patient has likely suffered injury as a result, that the NHS Trust would admit liability at a very early stage when told that the patient intends to claim compensation. However, time and time again, we see that this is not the case. On several occasions, I have written to an NHS Trust at the outset and invited them to formally agree to stand by the findings of their internal investigation, thereby avoiding the need to incur thousands of pounds of legal costs investigating the standard of care provided. I have never yet had a case where the NHS Trust has agreed to admit the failings identified in the report, without receiving a formal Letter of Claim. 

I currently have a case where the internal investigation report found multiple failings to identify and treat symptoms of sepsis in a young child who suffered brain injury as a consequence. Even after obtaining expert reports and sending a Letter of Claim alleging the failings identified in the internal investigation report, the Trust has denied that they are at fault for failing to spot the signs of sepsis. I have no doubt that ultimately my client will be successful, but the legal costs to prove fault, when the Trust is determined to deny liability, are likely to be several hundred thousand pounds.  

In the meantime, my client, who is a minor, and their family are left to struggle on without the financial help they desperately require to meet my client’s needs.        

Delays in Admitting Liability in Litigated Cases

I have another case that has been running for over 5 years. My client suffered nerve damage after spinal surgery which has significantly affected her mobility. At her follow-up appointment, the surgeon told my client that it was her (the surgeon’s) fault, she was very sorry, and she had put one of the screws in the wrong place but that it was now too late to do anything about it. However, when we sent a formal Letter of Claim to the NHS Trust, they denied that it was negligent to put the screw in the wrong place, denied that it was negligent to fail to correct the error as soon as it was noticed and denied that the misplaced screw had caused my client’s injuries.

Court proceedings were issued, and the Trust successfully argued that the issue of liability – that is whether they were at fault and whether any negligence on their part had caused my client’s injuries, should be determined first before the value of the claim was considered. Expert medical evidence was needed from three different medical disciplines just to consider the issue of liability. Expert reports were exchanged, and the Trust appeared to have expert evidence which supported their position. The Trial was listed for December 2024 and a settlement meeting was booked for October 2024 to see if agreement could be reached without the need for a (very expensive) Trial. 

As is customary in this type of litigation, the experts met to discuss their respective positions and produced a joint statement. On reading the joint statement of the orthopaedic surgeons, it became clear that the Trust’s expert had in fact produced a second report in May 2024, which had not been disclosed at the time. It transpired that in this report, the expert had altered his view and essentially agreed that the screw should have been removed within days of the surgery and that this would have avoided my client’s injuries. Yet still, the Trust did not admit liability. 

We had asked the Trust on several occasions whether they were intending to make any financial offers of settlement at the settlement meeting, or if they were only going to consider the issues of liability. We received no response and therefore had to prepare for the meeting on the basis that either form of offer might be made. On the evening before the settlement meeting, I received a call from the Trust’s solicitor to advise that they were not going to attend the meeting. Instead they were going to admit liability for the Claimant’s injuries.

This decision was made by the Trust less than eight weeks before the Trial was due to start. The experts in the case are clinicians still working in medical practice. They have to arrange leave to give evidence at court hearings months in advance and cancellation charges will already apply. My client’s legal fees, which ultimately the Trust will have to pay, are in the region of £300,000 to get to this point. 

We will now need to go back to the court for a new timetable of evidence to consider the value of the claim. This will involve obtaining expert evidence from multiple different experts as my client needs help with many aspects of daily living, single level accommodation, specialist equipment and rehabilitation therapies. These costs will always have been needed, but the costs incurred up to now could largely have been avoided if the Trust had admitted liability for my client’s injuries from the outset. More importantly, if that had been done, the case would likely have been finished by now and my client would have the help that she desperately needs in place. As it is, my client has had 6 years of pain and suffering without any help, and the additional stress of going through contested litigation.             

Conclusion 

Even though the legal costs associated with medical negligence litigation are considerable, there are ways to effectively and fairly limit these costs. This is particularly so, when it is clear that the claimant has a strong case in terms of being able to demonstrate that their injuries are the result of negligent treatment. If an admission of liability is made at an early stage, this means that the claimant can access funds to pay for the rehabilitation and support that they need, maximising their chance of making the best recovery possible. This in turn improves quality of life for the claimant, but often reduces the overall value of the claim, and therefore further reduces the costs payable by the NHS. 

Why NHS Trusts insist on denying liability in the face of a strong claim in so many such cases is unclear. One theory is that NHS Trusts, or perhaps more accurately, NHS Resolution, (the litigation arm of the NHS) are worried that by accepting liability, they leave themselves open to claims for unreasonable amounts of compensation. However, the reality is that a competent and specialist  claimant clinical negligence solicitor will always seek to recover the amount amount  of compensation required to meet their client’s lifetime needs no less but also no more. 

Kym Provan

Partner & head of Enable Law’s 

Southampton clinical negligence team