Last week, the National Audit Office wasted a valuable opportunity to highlight the causes of costly NHS litigation. This despite Lord Justice Jackson promising the NOA was “investigating the manner in which clinical negligence claims are being handled on the defendant side.” Instead, the NAO focused on headline-grabbing estimated future annual spending figures which neither explained the increase in claims nor how they are conducted. The NAO also failed to delve into the impact NHS conduct has on the cost of clinical negligence litigation and the extent to which events leading to claims reoccur. These are long-running issues that vex claimant lawyers.

The NAO says the annual cost of clinical negligence will reach an eye-watering £3.2 billion by 2020-21. While just an estimate, it is unclear whether the future impact of the Jackson reforms (which have yet to fully kick in) have been taken into account. Fixed recoverable costs will play their part.

Where the NAO is right is in saying the relationship between patient care, patient attitudes and clinical negligence claims is poorly understood. Many view the NHS as a national institution and patients take no delight in suing, but do so when dissatisfied with the response received following an incident, or when left with life changing injuries. However, the NAO gives insufficient attention to “medical” lessons that, if learned, would reduce the need for claims and their associated costs, and simply concerns itself with claims-handling efficiencies.

That said, conduct of litigation is concerning. The NAO states “NHS Resolution uses in-house claims operators to handle its claims. Most claims staff have a legal or insurance background. Many are qualified solicitors, barristers, and associates or fellows of the Chartered Insurance Institute.” Yet the real cost driver is inconsistency. Clinical negligence litigation is complex and there is often an interplay between law and medicine. Much depends on the experience and technical ability of the claims handler. Claims should only be handled by qualified lawyers who have practical experience of a clinical negligence caseload, not an insurance underwriter or someone who just happens to have a law degree. Speak to barristers who undertake defendant work, or solicitors from one of the 10 NHS Resolution panel firms, and you will hear the same frustrations again and again – a difficulty in obtaining instructions, confused instructions received and advice given being frequently ignored. This causes delay and cases to run deeper into the litigation process than should be necessary before an admission of liability is received – just compounding the cost.

The primary way to tackle burgeoning spend on clinical negligence litigation is to learn from clinical mistakes and to put in place procedures to prevent – as far as possible – recurring errors. Where negligence does occur and injury is sustained, NHS Resolution must be more proactive. The NHS Resolution panel firms should be instructed at a much earlier stage and there should be far greater, and swifter, collaboration with claimant lawyers to achieve settlements quicker.

The current trend of combative litigation is ill-judged, expensive and unnecessary. Collaborative litigation and making greater use of alternative dispute resolution would serve to limit spend and achieve better outcomes for all.

This article first appeared in Times online on 14th September 2017