Tackling a deny, delay, defend culture

A NAO audit promises to shine a light on the NHSLA but will it come too late to influence the introduction of fixed fees, wonders Nina Ali

For many years, medical negligence lawyers have been voicing concerns about how the behaviour of the NHS Litigation Authority has driven up the cost of clinical negligence claims in the health service.

The National Audit Office’s recent announcement that it will be launching an investigation into the operations and efficiencies of the authority was therefore welcome news, bringing the promise of much-needed scrutiny of how claims against the NHS are handled.

However, despite the NAO investigation being due to report in June, the government is ploughing ahead with attempts to curb costs by targeting claimant lawyers by launching its long-awaited consultation on fixed fees in clinical negligence disputes.

It seems bizarre that decisions regarding a new fixed fee regime should be made when evidence as to how the system currently works is still being gathered.

The main audit question the NAO will be seeking to answer is: are the costs of clinical negligence in trusts being effectively managed? They want to understand why costs in clinical negligence have increased in recent years and if the NHSLA understands why the increases are happening.

It will also assess the NHSLA’s contribution to helping trusts to reduce the number of negligence claims they receive by sharing learning about past incidents and encouraging wider forms of redress for affected patients.

The investigation will report to the Public Accounts Committee which will consider its findings and may call a public set of hearings. The NHSLA will be required to consider the findings and make appropriate changes.

My own experience is that legal bills are often massively increased as a result of the NHSLA’s failure to admit liability at an early stage and that much of the work carried out by a claimant’s solicitors becomes necessary solely due to the manner in which the defendant conducts its case.

Figures obtained by freedom of information requests made by the Society of Clinical Injury Lawyers covering claims in 2015/16 showed the NHSLA ends up paying damages in more than three-quarters of cases after the issue of proceedings.

This demonstrates how expensive cases can be once proceedings are issued. In the 3,281 cases settled before proceedings were issued, claimant costs were £65.7m. In the 2,514 claims closed after proceedings were issued, claimant costs climbed to £213.1m.

The fact that 76 per cent of extended cases still led to damages shows defendants are drawing out meritorious claims unnecessarily.

From a client’s perspective, delays caused by the defendants can be unrelenting and are hugely distressing. It should also be noted that the defendant’s solicitors are not acting on CFAs and are therefore paid regardless of the result.

Consequently, there is no incentive for them to deal with work efficiently or to progress claims fairly and appropriately.

For too long the government’s focus has been to blame claimant lawyers for the rising cost of litigation while ignoring the role of the NHSLA. Despite the commissioning of this NAO report, the launch of the consultation on fixed fees in clinical negligence disputes suggests this will be where the focus continues to lie, with inconvenient truths about the role of the NHSLA swept aside.

I would call on the government to ensure that the outcome of the NAO report, which could throw up possibilities for reducing costs that do not, like the fixed fees proposals, have a detrimental impact on access to justice for victims of medical negligence, be taken into account, alongside responses to the consultation.

It is hoped that by shining a light on the operations of the NHSLA, the NAO’s findings could bring an end to the ‘deny, delay, and defend’ culture of the NHSLA and potentially contribute to tackling the underlying problems behind the rising number of medical accidents, ultimately saving our cash-strapped NHS money.

Nina Ali is a medical negligence partner at Hodge Jones & Allen

This article first appeared in Solicitors Journal in February 2017.