The effects of Covid-19 have deluged all dimensions of life like a tsunami of tribulation. Jobs, businesses, education and relationships have not escaped the torrent that has hit with each Covid wave. These have been unchartered waters for all and the practice of clinical negligence has unsurprisingly not evaded the pressures of the pandemic either.
Covid-19 has impacted everything from insurance to funding and remote working across the industry. Law firms like ours have had to rise to the challenges faced. Jumping over these logistical hurdles has been difficult at times, particularly where tightening the funding purse strings has increased costs and risks.
However, as an industry, the clinical negligence sector has coped well, as NHS chiefs announced in the latest NHS Resolution (NHSR) report released earlier this month.
Law firms were commended for their collaborative and co-operative approach over the last year which has resulted in a significant drop in litigation. Around three quarters of all 15,674 cases settled in 2020/21 were resolved without the need for court proceedings (74.7 percent compared to 71.5 percent in 2019/20). These were settled via correspondence, at settlement meetings or dispute resolution such as mediation. Of 299 mediated cases, 77 percent were settled on the day or within 28 days of mediation.
Early resolution has been hailed as a welcome improvement between both parties, helping improve settlement times for claimants and reducing litigation costs for the defendants. It can already take a minimum of 18 months to reach a settlement, so anything to ensure smooth running of the claim, such as eliminating the need for attending court, is a step in the right direction for the future of clinical negligence claims.
The cost of clinical negligence
One of NHSR’s main strategies in recent years has been to reduce the amount spent on clinical negligence claims – or mainly the cost of claimants’ legal fees, the overwhelming majority of which are conditional fee agreements. Proposed procedures to reduce litigation costs include requiring the claimant to seek any remedial treatment/surgery through using the NHS rather than via private healthcare providers. There are also suggestions that compensation for loss of future earnings should be standardised to the national average wage.
Consultant senior solicitor, Sarah Johnson says: “The basic premise of compensation is to put the claimant back into the same position they would have been but for the accident so they are no worse off. Will the NHS, which is already under severe financial strain, be able to offer the treatment or surgery needed by the claimant to get their life back on track in a timely fashion if these proposals go through? Likewise for earnings, is it fair that a claimant that may have been on course to earn a better-than-average salary but for the negligence be limited to average national earnings?”
Last year, NHS Resolution’s overall provision came £430m under budget, largely due to lower-than-expected incoming claims because of the aforementioned operational challenges faced by the legal sector, and a reduction in the expected inflation of future claims costs. They paid out £2.26bn in damages including legal costs – a reduction of £120m on the previous year.
But reducing the financial cost of medical error shouldn’t be the only priority. There is also a human cost involved in rebuilding the lives affected by clinical negligence. Transparency and accountability should not be forgotten and it is hoped more procedures will be put in place to improve patient safety, such as training and data sharing, to reduce the occurrence of substandard medical care.
“This is key! Else isn’t it like closing the stable door after the horse has bolted?” Sarah says.
Maternity claims continue to be the highest value of all claim types at 59 percent of all damages paid. This is in part due to the new Early Notification Scheme which speeds up the identification of high value cases that might result in a claim. Maternity safety continues to dominate the headlines and the scheme now allows families with a baby affected by a severe hypoxic brain injury attributable to substandard care are better placed to receive answers and access to compensation sooner and without having to pursue court proceedings.
The impact of coronavirus on new clinical negligence claims
One thing to note with the new NHSR report is that over 90 percent of the money spent by NHS Resolution in 2020/21 related to incidents which occurred before that time period. Only seven of all the 12,629 claims received were related to coronavirus. The true impact of Covid-related claims is still very much unknown and it may be another year before it comes to light.
At Medical Solicitors, and across the industry, we have seen a sharp rise in medical negligence enquiries since the start of the pandemic. While these are not necessarily as a direct result of the virus - or even secondary effects – an increasing number of enquiries shows that focus must be on improving patient safety. The cost of clinical negligence will only continue to rise without wider reform.
There was a 7.5 percent increase in claims received that was driven by the relatively new GP indemnity schemes which include historic claims. But with operational challenges faced by the industry, and the record-high wait times patients are experiencing, the full effect of the pandemic on case volumes will only become apparent in future years.
Protective measures imposed on the NHS has indirectly impacted people with significant health conditions in acute numbers. Future costs have already been estimated to increase by around £0.5bn for Covid-19 claims, many of which we predict will be secondary cases caused by the delays to diagnosis and cancelled operations which have hit record highs.
Complex and problematic decisions regarding individual patient care have needed to be made over the last year and nobody envies the staff burdened with that responsibility. But choosing to exclude and dismiss non-covid health concerns as priority in order to not overwhelm the NHS has resulted in some frightening statistics and a daunting backlog that will take years (and considerable investment) to get through.
Over five million people now waiting for routine treatment
Waiting lists for treatment hit an all-time high in May, with 5.3 million people awaiting routine or urgent care for things like cancer, knee and hip replacements, or cataract surgery. Almost 330,000 of these patients have been waiting over a year.
The list of people waiting more than the recommended 18 weeks for consultant led treatment has increased by 606,501 in the last three months, with fears figures will hit 7m by the end of the year. Only two-thirds of people received treatment within 18 weeks; the standard is 92 percent.
People on cancer referral systems are facing long waits also. Since the start of the pandemic, 300,000 fewer people have seen a specialist for suspected cancer. Of those who have been seen, three quarters had to wait longer than the recommended two weeks from referral (target is 85 percent) and the same ratio were seen after NHS screening (target is 90 percent).
Reductions in referrals, substantial diagnostic and treatment delays and patients being afraid to visit their GP with symptoms has meant professionals are now predicting tens of thousands of excess deaths from cancer over the coming years.
In addition to this, A&E departments across the country are at their busiest, with 2.1m people attending in June. Of those people, a quarter waited longer than four hours to be seen. Many of these patients are reported to be people who cannot get an appointment with their GP or get through to the NHS 111 service. But it only adds extra strain on urgent care systems that are already buckling.
The future of clinical negligence claims
Vulnerabilities of an institution already facing deep-rooted issues have been exposed. But there will be no time for frontline staff to reflect or decompress; they will simply be thrown into the deep end again. The government has announced it will be investing an additional £1bn to clear the backlog with extra operations and treatments, but is that really enough? And will this inevitably lead to a surge in claims?
Not necessarily, but it is far from desirable or acceptable. While it isn’t always easy to prove that an extended wait time faced by patients was a directly caused their injury, delays do cause irreversible harm to many. Because of Covid-19, millions of people are now left waiting in limbo, facing pain, limited mobility, isolation, loneliness, and the fear of untimely death as a result of delayed care and deprivation of treatment.
The stakes are always high with clinical negligence, but the pressures of the pandemic are only just unfolding.