NHS Resolution's latest annual report is an excellent barometer for both the successes within medical negligence and the areas where there’s more work to be done.

The report is as important for claimant lawyers and our clients as it is for NHS Resolution, and this is because it makes clear the significant benefits of collaboration that were catalysed by the Covid protocol agreed during the pandemic, which my firm Fletchers has continued to champion ever since.

This year’s report underlines the value of collaboration: 80% of claims are now settled without recourse to the courts, up 3% from the previous year. Being able to address cases without the ticking timebomb of limitation (a key feature of the Covid protocol) has been a gamechanger. The protocol is currently under review, and I urge NHS Resolution to acknowledge its value by making it a stable and permanent part of the way we do things.

Linked to this, the report notes that around 75% of the 20% of cases where proceedings are eventually issued result in damages being paid to claimants. This tells us two things; firstly that the opportunity to go to court is still critical to achieve justice when the parties cannot agree, and secondly that with NHSR paying damages on the majority of cases, claimant law firms are largely making the correct call. 

With this in mind, to further improve on the outstanding success of collaboration, the onus is now on NHSR to review the criteria it applies  to cases to avoid the need to go to litigation.

Turning to delays, it is notable that 'deliver fair resolution' is a key performance indicator where the NHSR scores red, largely down to the pandemic. Blaming Covid is a common thread in the civil justice system, and of court the pandemic heaped pressure on the NHS and the courts. But we cannot blame Covid forever; let’s see concrete plans, with targets to deal – finally - with the after effects of Covid, otherwise we will risk losing credibility.

We need to talk about obstetrics, and in particular maintaining laser-like focus on the ENS (early notification scheme). The annual report notes that 13% of medical negligence claims are obstetrics-related, with 2% of claims having gone through the ENS. Birth injury claims account for 64% of the value of all medical negligence claims against the NHS.

Not only are these claims costly, the effect on families from delays in admission is traumatic. Even though 2022/23 appears to have been the best year so far for the proportion of obstetrics claims being picked up by the ENS, still fewer than half of new claims are going through the scheme. The wait time for the rest is still far too long. 

It’s good news that NHSR has placed such a high priority on maternity in its three-year strategic plan, given the severe impact on families, so we urge increased resources devoted to getting NHS trusts to engage fully in meeting the safety actions in the maternity incentive scheme (which supports the delivery of safer maternity care through an incentive element to trust contributions to the Clinical Negligence Scheme for Trusts).

The number of compliant trusts fell back last year, so it would be useful to know how NHSR plans to approach trusts that are not fully compliant and do not have tangible plans to improve.

Medical negligence is a Sisyphean struggle, so we should applaud the incremental gains made each year to improve outcomes in this difficult and emotive area of civil law.

NHS Resolution's annual report proves that collaboration is the right way forward for our sector, and I am confident that, working together, we can continue to improve reputational, financial and emotional outcomes for the NHS and families affected by these terrible events.

Peter Rigby is director of medical negligence, Fletchers Solicitors

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