Fear of litigation must never be a roadblock to transparency

The NHS Litigation Authority has managed around 160,000 claims for clinical negligence over the course of its 20 year history, relating to incidences of harm dating right back to the creation of the NHS. Typically, we receive around 1,000 new claims a month but even today it is not unusual for us to receive claims that relate to events back in the 1950s and 60s.

Our aim is to deliver compensation as quickly as we can where it is due, whether that be a few hundred pounds due to an extended stay in hospital or a multi-million-pound settlement to someone who has suffered lifelong harm.

As every penny paid is tax payer funds that could otherwise be spent on patient care, claims are investigated thoroughly and over 50 per cent of cases brought against the NHS are turned down. It will be of no surprise either that given the NHSLA’s mission to eliminate unnecessary legal costs, we frequently find ourselves at loggerheads with claimant lawyers over their bills.

Our ambition is to reduce the need for expensive litigation and for resolution to be achieved in its broadest sense with families and healthcare staff where something goes wrong. This means increasing the use of mediation in the NHS, early transparency, saying sorry and demonstrating that lessons have been learned to prevent the incident happening again.

Rich in learning

Fear of litigation should never stand in the way of learning or transparency. We will always encourage and support trusts in doing what is right, regardless of the potential for a claim.

We are a not-for-profit part of the NHS rather than a commercial insurer and have never denied a claim because an honest explanation has been given to a patient. It is our experience that an incident, handled well is more likely to prevent, rather than encourage, litigation.

Learning from claims is a challenge as they are a skewed picture of harm, driven by other factors such as the legal environment and with an inherent time-lag. Often, it takes time for the full extent of an injury to manifest itself.

We will always encourage and support trusts in doing what is right, regardless of the potential for a claim

The principal driver of the £4.5bn paid out in the five years to 2015 in England is the lifetime costs of caring for children who tragically suffer brain injury at birth. This involves a complex assessment of care needs which may not be fully clear until some years after the event and so families have an unlimited time to bring their claim.

Nevertheless, claims can be rich in learning as they often involve a detailed analysis of events, from a 360 degree perspective, often with expert input. They are the visible tip of a large iceberg of avoidable cost and given the direct relationship between that cost and the bill for indemnity cover, we are increasingly engaged in working with trusts to understand the causes of claims at a local level.

Members of our indemnity schemes (the whole of the NHS in England) can use our tools to see their claims at a detailed level and work with us to analyse trends by specialty, type, cost and number and various other cuts. This is particularly insightful when viewed alongside incident and complaints data.

We are publishing analysis at a national level on areas of high claims frequency or severity and are increasingly using the risk pool as a platform to share learning across the NHS.

Last year, we awarded £18m of incentive payments as part of the Sign up to Safety campaign to support 67 local safety improvement plans to address the causes of the harm which leads to claims. By bringing together trusts with the royal colleges, procurement experts and others, we directly supported the ambition of the campaign to reduce avoidable harm by half.

The scope to do more is huge and the direct financial imperative to do so very visible in our accounts. But more importantly, our aim is to do whatever we can to make the NHS safer for patients and to support staff in doing what is right without legal process getting in the way.

Helen Vernon is chief executive of the NHS Litigation Authority