The National Audit Office has published its report into clinical negligence litigation costs. Its assessment – that there are spiralling costs of litigation – is correct, but by focusing on financial liability, it risks overshadowing the root cause: continued failures in patient safety.

I share my views on the content of the report below, from my perspective as a clinical negligence solicitor:

1. Uncontrolled costs and rising financial liability

The most critical conclusion is the increasing financial burden of clinical negligence costs to the NHS and the failure to control this by successive governments.

That conclusion is clear to see, however the focus should not be on cost, as cost is a consequence, not a cause. In my opinion, the rising cost is a manifestation of unacceptable care within the NHS. Every pound spent, relates to a pound compensating a patient who has suffered avoidable harm due to a breach of duty.

It’s important to remember that neither the Court, nor solicitors, impose their own arbitrary standards on clinical practice. To succeed in a claim, we have to have supportive evidence from an independent medical expert to say that the level of care provided, bearing in mind resources, facilities and standards set by doctors, fell below an acceptable level. It is a deliberately high bar.

2. Patient harm prevention

Pleasingly, the report acknowledges that efforts focused on claims management or legal reform can only provide limited relief. The single most important issue for controlling the cost is the need to reduce the incidents of negligence occurring. The issue, in my view should be dealt with at source, not at the end of the process. It’s about prevention, not cure. By investing in the NHS and giving our dedicated doctors the tools and resources they need, the incidents of poor care will inevitably decrease.

3. Focus on drivers of cost

The analysis of the report is structured around identifying factors that drive the cost, which include:

• Financial liability: long term changes in the amounts needed to settle claims. People are living longer, medical science advances, thereby meaning damages payments consequently increase.

• Drivers of volume and cost: analysis of the factors influencing how claims are made and how costly they become.

• Systemic pressures: factors that could affect the future cost of negligence.

4. Efforts in claims resolution

The report acknowledges that NHS Resolution (NHSR) has made efforts to mitigate the financial and emotional cost to claimants, by resolving claims faster and seeking resolution without litigation wherever possible. Anecdotally, I have to say that this is not always universal. Litigation should be avoided where possible of course, (indeed this is the ethos of the Civil Procedure Rules), but not at any price.

I have a duty to my client to act in their best interests and pursue their claim to resolution and sometimes this means we can be waiting lengthy periods of time (outside of the rules and protocols than govern these claims) for NHSR to respond, which is out of our control. As such we remain vigilant to ensure speed does not come at the expense of a fair assessment of quantum, nor delays at the expense of progressing a claim, so the claimant (and indeed defendant) does not have the litigation process hanging over them so that closure cannot be obtained.

Final thoughts

The report highlights the increasing cost of claims created by clinical negligence. However, in my view, reducing this liability should mean a focus on improving medical care, arming the NHS with the resources it needs to deliver this, and not penalising patients for seeking just compensation when avoidable damage occurs. We hope to see the cost of litigation fall come the next NAO report, and see that the government’s ‘Plan for Change’ can make a difference.