Covid clinical negligence collaboration reaps rewards for NHS and patients

A collaborative approach agreed between three professional bodies in designing and operating the Covid-19 Clinical Negligence Claims Protocol has created savings benefiting the NHS and patients.

The innovative approach agreed between NHS Resolution, Action against Medical Accidents (AvMA) and the Society of Clinical Injury Lawyers (SCIL), which regularly negotiate to settle medical disputes, significantly reduced the volume of litigated clinical negligence claims and created savings benefiting the NHS and patients.

A key element of the agreed protocol, signed in August 2020, is that cases can be registered and investigations can start without having to start court proceedings, which usually have to be settled within a three-year limit and are when costs escalate due to assembling evidence, such as detailed medical reports that can run to thousands of pages.

When medical negligence claims are successful the NHS has to pay compensation to the patient involved, or their family, along with the legal costs and this comes out of the NHS treatment budget.

Some cases may still have to go through court hearings but the protocol means that more cases have an opportunity to be discontinued or settled without going to court reducing costs paid by the NHS.

NHS Resolution figures show that since the implementation of the Covid-19 Clinical Negligence Protocol there has been a six per cent reduction in the number of settled cases which became litigated between financial years 2019/20 and 2021/22, a difference of around 572 cases.

The longer legal cases run for, the higher the associated costs, making it better for cases to be thoroughly investigated and settled fairly as soon as practical.

In the same period, the average difference in costs paid to claimant solicitors for cases that were litigated or settled by agreement was around £57,000 per claim.

The three bodies say that, while the estimates are encouraging, there are areas of uncertainty, including around the size of any Covid-19 related effects on the numbers of claims received.

They add that further data on claims trends before, during and after the Covid-19 pandemic should help isolate these effects and create greater clarity on the effectiveness of the protocol and the savings achieved.

The total number of claims and costs have also been affected by NHS Resolution taking more responsibility for historic GP claims and these will also have to be isolated to identify the true costs savings.

If, after this, the protocol is eventually shown to have permanently reduced the overall amount of litigation, then the collaborative protocol is likely to have saved significant costs for all parties, most importantly the NHS.

Director of medico-legal services at Action against Medical Accidents (AvMA), the UK charity for patient safety and justice, Lisa O’Dwyer, said: “The impressive likely cost savings are testament to what can be achieved when key, specialist clinical negligence stakeholders collaborate. More generally, it is very positive that both claimant and defendant practitioners have derived considerable benefit from the clinical negligence protocol.”

Director of claims management at NHS Resolution, Simon Hammond, said: “The Clinical Negligence Protocol has proven how collaboration can benefit all parties. We look forward to working with SCIL and AvMA on the possibility of developing how the protocol could apply in a post-Covid environment.”

Chairman of the Society of Clinical Injury Lawyers (SCIL), Paul Rumley,  said: “These figures are very encouraging, and we are pleased to be part of this effective, practical and now costs-saving work alongside AvMA and NHS Resolution. It goes to show how specialist claimant lawyers and indemnifiers can work in collaboration to find practical solutions to the challenges faced.”

Harrowells partner in the firm’s Clinical Negligence and Catastrophic Injury team, Kim Daniells, says: "The Covid-19 Clinical Negligence Protocol has been of benefit to claimants and the NHS - it has allowed matters to be properly investigated by all parties prior to any litigation. It has ensured, in many cases, that the costs of pursuing successful claims are kept down. It has also allowed those representing claimants to look carefully at the concerns of patients and their families before embarking upon litigation. The Covid-19 pandemic put unprecedented pressure upon the NHS, but it also caused very significant difficulties for many patients and their families - the Protocol helps to ensure that those challenges can be met with a proactive, collaborative and practical response. "