How much are clinical negligence claims costing the NHS?

This weekend, not for the first time and not for the last I'm sure, I ended up chatting to someone at a party who works for the NHS. They are the largest employer in Europe (1.7 million was the most recent number I could find from 2015). Usually there will come a point during the discussion (because of my role as a clinical negligence lawyer) where the drain on NHS resources caused by clinical negligence claims will be lamented. Invariably (and understandably) I am cast as the NHS detractor and the employee as the protector.

Very rarely (in fact not once thus far) are these debates supported by actual numbers so I thought I would try to have a look at just how much of the public purse is being emptied in the direction of claimants, their lawyers and NHS lawyers compared to the NHS budget as a whole and other government spending.

I make no judgments here – they are just figures available through my own brief online research.

Total NHS Expenditure on 2016/17 set against other public expenditure

This means that total expenditure on the NHS in 2016/17 expressed as a percentage of total public expenditure is 18.78%. (1)

Legal Costs of Clinical Negligence Claims to the NHS expressed as a percentage of the total expenditure on the NHS.

According to the NHS Resolution’s annual report and accounts for 2016/2017 the total expenditure on claims against the NHS was ￡1.7bn. The table below shows the split between damages and legal costs and further how those legal costs are split between Claimant and Defendant. (2)

The Defendant costs figure here is approximately ￡15.5 million more than the figure given in the parliamentary answer below. I do not know why this is but perhaps this is for costs paid out prior to the issue of proceedings. 

This means that the total cost to the NHS costs to the NHS of clinical negligence claims (￡1,707,200,000.00 or ￡1.7bn) expressed as a percentage of total expenditure on the NHS (￡145,000,000,000.00 or ￡145bn) is 1.18%.

Defendant legal costs by firm.

The amounts that were spent on legal costs in Defending claims against the NHS came under scrutiny in parliament in January this year. On 15th January 2018, the MP for Basildon and Billericay Mr John Baron asked the following question under the title NHS: Negligence;

"To ask the Secretary of State for Health and Social Care, if he will list the solicitors instructed to defend clinical negligence claims against the NHS where the claim has resolved, and for each such firm (a) what fees were paid, (b) how many claims were made and (c) how many of those were successful as denoted by payment of damages whether by court award or settlement in the last 12 months".

Mr Baron received his response from the, then, newly appointed Minister of State Stephen Barclay

"NHS Resolution manages clinical negligence claims against the National Health Service in England on behalf of member organisations. NHS Resolution has provided the following information:

The data extract is for the last audited financial year 2016/17. The 2017/18 data has not yet been audited.

The table below [embedded to right of text above] shows the number of clinical claims closed (or settled as a Periodical Payment) 2016/17 as at 31 March 2017 by panel firm. (3)

I have emailed John Baron MP to ask if there are any plans to have the same figures broken down by Claimant firm and I await this response.

Update: His office responded saying he can’t answer me because I’m not in his constituency and that;

“I am therefore copying this email to your own MP, whom I am sure will respond to your concerns in due course”

So Rebecca Pow. Either get back to me via email please or just come and bale me out at the next party. Thanks xx

This article was written by Mike Shaw. Mike is a clinical negligence barrister whose clients instruct him in order to secure the correct settlement that will compensate them fully according to their needs. He puts their best interests first and creates a smooth, clear path through the legal process. Mike also offers public access representation.

(1)     Budget policy paper 2016

(2)     NHS Resolution annual report and accounts 2016/17

(3)     Parliament’s written questions and answers