Clinical negligence and litigation

Whether patient, relative, a lawyer acting for a patient, a healthcare professional or a patient safety expert, we all want to avoid incidents that lead to claims. To make this happen, we must work together to learn from claims.

Clinical negligence can have substantial, perhaps immeasurable, impact on patients and their relatives. Our recent thematic reviews into learning from suicide related claims and five years of cerebral palsy claims highlight personal tragedies. Negligence also comes at significant financial cost to the NHS. Between 2006/07 and 2017/18, clinical claims payments quadrupled, from £0.4 billion to £2.2 billion, with the number of reported claims doubling from 5,400 to 10,600 over the same period.

We are collaborating to help improve services and reduce the risk of things going wrong. In maternity, the clinical area with the single biggest cost of claims, we are supporting the national ambition to halve maternal and neonatal deaths and significant harm through early notification of incidents – capturing maternity incidents within 30 days; supporting local systems in their response, including early family involvement and sharing learning; carrying out early liability investigations; and providing compensation where appropriate. Our Clinical Negligence Scheme for Trusts (CNST) rebate rewards trust for delivering 10 key maternity safety actions. We undertake in-house research into the causes of maternity incidents and share our findings to enable maternity safety improvement. 

More widely our claims scorecards help our members understand their claims data to better target interventions aimed at improving patient safety. We work with the Getting It Right First Time programme to improve the quality of care by reducing unwarranted variation (see below) across the NHS. Our thematic reviews are another important way of sharing insight and focusing improvement. 

NHS Resolution has commissioned and published research on the period between when a harmful incident happens and the patient decides to make a legal claim. This is being used to develop a national programme of work to improve the NHS’s response when things go wrong, including by supporting NHS staff to be open, raise concerns and deliver duty of candour and apologise with confidence. We will continue to run workshops and publish research and analysis, collaborating with DHSC and the Parliamentary and Health Service Ombudsman, to help the system deliver effective and sustainable action to improve its response to concerns and complaints from patients and their families. We will also work with our partners to gather good practice and training in learning from claims into one Faculty of Learning to share with the NHS. 

We will continue to use elements of the CNST pricing to incentivise improvements in care. We will explore expansion of the successful Maternity Incentive Scheme to other areas. 

Data is key to identifying future priorities and extracting insight. Together with the programme to replace the NRLS, we will align data on incidents, complaints and claims, supporting development of a shared taxonomy that will enable analysis across databases.  

We will continue to support work across government to address the costs of clinical negligence claims – so that more money is available for healthcare – and use the costs and causes of litigation to inform decisions about improvement priorities. We will also continue to promote effective and appropriate use of alternative dispute resolution initiatives such as our mediation service.

The GIRFT programme began in orthopaedic surgery in 2012 to address the unwarranted variation in clinical practice, improve patient care and provide efficiency savings for the NHS. A senior clinician visited every trust in England with a bespoke data pack for each orthopaedic department bringing together key data from national datasets, audits and registries to inform clinicians’ discussion of their department’s performance and to share good practice. The programme now covers 40 clinical specialties.

GIRFT visits identified that many clinicians and staff at all levels were unaware of the litigation claims against their department and suggested the need to improve learning from clinical negligence claims. GIRFT worked with NHS Resolution to release the Surgical Specialties Litigation Data Pack in December 2017. This contains specialty-specific litigation metrics allowing trusts to benchmark their performance against the national average.

GIRFT also specified action points for local systems: careful review of each claim; benchmarking the position of each department against the national average; informing NHS Resolution of any coding errors; triangulating claims with learning from complaints, inquests and Serious Incidents.

In June 2019 GIRFT released a new Litigation Data Pack for all trusts in England with refreshed surgical specialities litigation data and new medical specialities litigation data to support and advance the work carried out by trusts in response to the previous data packs. The GIRFT programme in collaboration with NHS Resolution continues to develop improvements in patient safety through claims learning. Later this year GIRFT will publish the first of its best practice guidance based on claims learning in orthopaedic surgery focusing on the high volume areas of hip and knee arthroplasty.