NHS defensiveness leads to spiralling costs and missed learning opportunities

18th July 2019 Clinical Negligence

I read with interest this morning the headline from the Times about the increase in the cost of the NHS defending medical negligence cases which has now peaked at £140 million.

The eight per cent rise in NHS defence costs is shocking but given the conduct of the NHS in claims it is not altogether surprising to us as clinical negligence solicitors. When put alongside the quote from head of the NHS Simon Stevens in the Health Service Journal about patient lawyers ‘getting in the way’ of doctors from learning from mistakes it is clear that the two issues are closely linked.

The increasing cost to the tax payer of defending NHS claims at a time when the man at the helm seems to see patient lawyers, and therefore claims, as nothing more than a nuisance to the profession is disheartening to say the least.

Clinical negligence claims represent the only form of recourse for patients who have sometimes suffered appalling injuries. These cases provide a key learning opportunity for medical professionals and as lawyers who care passionately about patient safety this is something we want to see. It is sad that Simon Stevens does not think patient lawyers have an integral role and this defensive attitude is clearly not working when costs are rising. We often have helpful information about patients concerns and it would be useful to have an avenue for patients to be aware of how lessons have been learnt from the poor care which led to litigation in the first place.

My colleagues in the medical negligence team at JMW and I regularly represent patients in a variety of cases that are defended by the NHS for lengthy periods of time only for it to make an admission of negligence or offer to settle at a late stage. This is despite overwhelming evidence that the patent was avoidably harmed and numerous opportunities earlier in the case for settlement to be reached. The result is that legal costs on both sides are needlessly pushed up.

I think I speak for every reputable medical negligence lawyer in the land when I say that we would much prefer cases to end sooner even if our legal costs are less because this would mean out clients can get on with rebuilding their lives sooner. This is particularly true for cases involving severe brain injuries to children where they are in desperate need of care and specialist housing and equipment. I can think of one such case involving a child who suffered severe and avoidable brain damage as a newborn. Unfortunately a short few years earlier the same thing had happened to another child who had also suffered devastating injuries and her family were told changes had been made. Clearly lessons had not been learned at all.

Despite sometimes making the right noises about ensuring mistakes are not repeated on the whole this is not something the NHS is good at and with the defensive culture we regularly experience in the claims process it is easy to see why. Until the NHS shifts from this culture patients will continue to be harmed and legal costs will continue to escalate



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Angharad Hughes is a Partner located in Manchesterin our Clinical Negligence department

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