We have written about clinical negligence claims before and the costs involved. In December, NHSR set up a mediation panel to deal with claims using mediators. They are also considering using expert determination/arbitration to resolve claims.
The NHS paid out £1.7 billion for medical mistakes in 2016-17, according to figures published by the National Audit Office (NAO). Of that £1.7 billion, legal bills took up 37 per cent.
The costs are rising the NAO finds. The fastest rise in the past ten years was in claimant legal costs, up from £77 million to £487 million. Last year those costs exceeded damages awarded in 61 per cent of claims settled.
In order to reduce costs, Ministers have proposed fixed costs in clinical negligence cases worth up to £25,000, and the appeal judge Lord Justice Jackson recommended in July that the Civil Justice Council, with the Department of Health, set up a working party to develop such a scheme. The government’s formal response to its consultation is expected next month.
The plans, however, have come under fire: lawyers say that they would make only the most straightforward cases commercially viable, leaving many patients without a remedy.
Plans for an arbitration system are being explored. The scheme, Resolve 2, was run as a pilot from December 2001 for about nine months. Ministers at the time declined to extend it, although Professor John Posnett, an expert in health economics, evaluated it and concluded that if all new claims under £10,000 were handled by Resolve, the NHS could save at least £6.59 million a year.
Under Resolve 2, fixed costs apply to experts regardless of outcome and, in successful cases, to solicitors. Both sides agree to be bound by the decision of an independent medical expert drawn from a panel agreed by NHSR and set by Resolve with the charity Action against Medical Accidents (AvMA). There is a strict timetable, including for the provision of medical notes, and the aim is to settle cases within six months, not the present average of 17 months. The scheme is answerable to an independent advisory board.
We are somewhat sceptical about this scheme as it appears that the expert will be selected by NHSR and if claims do not settle then litigation is still an option.
We recommend mediation by an expert mediator, perhaps someone independent from NHSR’s own panel of mediators who have to agree to their approach in order to be selected for the panel. ProMediate has a panel of mediators who can conduct clinical negligence claims mediation.