The NHS Litigation authority cost the NHS billions by wasting time
Posted on August 12th 2016
While the NHSLA sets out that its aim is to “help the NHS to resolve disputes and claims fairly and costs effectively”, in many cases this does not happen.
In fact, the NHSLA insists on carrying out prolonged investigations into cases before eventually admitting the care was negligent and settling the case, when simply settling cases early would be far cheaper. Unnecessary cost is not the only downside. For those patients and their families who are claiming, it can be traumatic and stressful to have to relive their bad treatment experiences and wait for settlement for months or even years. Especially in cases where a family member has died as a result of negligent care, delays and being forced to relive the experience again can severely damage the family’s ability to grieve.
Complaints made before we are contacted – NHS Hospital complaints staff involved
Even before a claim is commenced, patients frequently make a complaint to the Hospital where the care was received. Although NHS Trusts are duty bound to investigate complaints, patients are often not fully satisfied with the reply they receive. They feel the investigation is flawed, the reply wrong, and that NHS Trusts fail to get to the truth of what happened.
As a designated complaints departments or staff tend to deal with the complaints, the NHS spends a lot of money on staffing costs. If only their replies to patients would satisfy the patients’ need to be heard and for their complaint fully investigated, this might be money well spent. Most patients or their relatives just want the truth to come out, their questions answered, and to receive an apology where it is due. They are not after money.
However, a lot of patients come to us precisely because they are unhappy about the way in which the Hospital has investigated their complaint of poor treatment. They are concerned about delays in the investigations, concerned that any reply they receive from the Hospital is not dealing with the issues raised or is just part of a ‘cover up’.
Claims made with our help – NHSLA involved
When we agree to help a patient, this rarely means that we commence court proceedings immediately. Where possible, we write to the NHS Hospitals to given them an opportunity to investigate the claim and settle the claim before progressing it.
This is the point where the NHSLA usually become involved in dealing with the claim on behalf of the Hospital trust.
In cases where the patient had already pursued a complaint which was investigated, this means that more time and money is spent on another investigation. If this investigation leads to a settlement of the claim, this again might be money well spent. However, too often the claim does not settle at this stage.
Court proceedings pursued with our help – NHSLA and their solicitors involved
Once court proceedings are commenced, the NHSLA often instruct a firm of solicitors to act on behalf of the Defendant Hospital Trust accused of negligent care, while the NHSLA remains involved in providing instructions and approval to any settlement reached.
Needless to say, it costs a lot of money to pay the professional fees/salaries of all the people involved in dealing with patient claims on behalf of the Defendant Trust. The longer it takes for a claim to be investigated and then compensation to be agreed, the higher these fees on behalf of the Defendant will be.
Once compensation is finally paid to the Claimant patient, the fees for the solicitors and experts acting for the Claimant, are paid in addition to this.
All of this money is paid for by the taxpayers in the UK.
Financially, it would make sense that the NHSLA sets out that it is their aim to, “help the NHS to resolve disputes and claims fairly and costs effectively.”
This would also make sense on a personal level, as the longer it takes before compensation is paid, the more upsetting it is for patients.
Unfortunately, and as can be seen in some example cases set out below, the NHSLA falls foul of its own aim, to financial and personal detriment. What makes this worse is that the NHSLA seeks to blame lawyers helping patients for increasing costs.
In 2016 it has been reported that £56 billion has been set aside to pay for NHS compensation, a price which could be drastically reduced if these drawn-out investigations by the NHSLA were dropped. Many agree that this money is being misspent when it could go towards research and treatment instead. Such is the case for 13-year-old Abi Longfellow, who was in the news recently because she has been denied life-saving treatment amounting to just £137,000; a small sum in comparison.
In their 2015/2016 annual report, the NHSLA acknowledge that the level of spending is huge but they appear to focus on blaming claimant lawyers; “We continue to target overcharging by claimant law firms, challenge bills and points of principle at court, and report poor practice to the Solicitors Regulation Authority as appropriate.” In terms of processing claims they state, “We continue to resolve justified claims as quickly as practicable and closed a total of 16,459 clinical and non-clinical claims in 2015/2016.”
In this article, we will present two case studies which dispute the idea that the NHSLA resolves claims “as quickly and cost-effectively as practicable,” and argue instead that the NHSLA often fails to settle cases proactively and is therefore responsible for some of the rising costs they lament.
The Society of Clinical Injury lawyers (SCIL) are amongst those leading the campaign against the NHSLA, in the hope that they will take action and truly deal with cases proactively, saving money, time and trauma. For more information on SCIL please visit this website.
Both of the cases below are examples of when the NHSLA has unnecessarily lengthened the medical negligence cases of two of our clients. There are many more examples.
Both of these clients eventually received compensation and we have made formal complaints to the NHSLA to ask them to investigate the appalling way the claims were handled by the NHSLA.
CASE 1 – Medical Negligence Claim
We pursued a medical negligence claim on behalf of a client whose family member received negligent care when they failed to make the correct diagnosis despite having attended the Hospital several times, having been sent home each time.
As a result, the patient suffered worsening pain and eventually died unnecessarily.
Before starting court proceedings
We helped the family send a letter of claim to the Defendant Trust in April 2013. The Defendant Trust had 4 months to investigate and provide a reply.
After repeated chasing, the reply was finally provided in July 2014, almost a year too late.
In the reply, the Hospital Trust admitted some instances of negligent care, causing some pain and suffering, but it was denied that the death had been caused by this.
No settlement offer was made by the Defendant Trust in respect of the admissions made.
Court proceedings were therefore served on the Trust in July 2014. The Claimant also made a settlement offer to the Defendant Trust.
A Defence was provided by the Trust in September 2014, which again denied that the death had been caused by its negligent care.
Court proceedings continued, where the Court ordered that each party had permission to instruct two experts, i.e. four experts in total.
Numerous steps had to be undertaken by the solicitors of both parties, including drafting witness statements.
Each party then sends their two Expert reports to the other party in October 2015. The Defendant Trust’s own experts agreed that the treatment that had been provided to the patient had been negligent and that there had been a resulting delay in diagnosis and treatment.
Once again, no compensation offer was made by the Defendant Trust. The family had no choice but to continue to fight the case on behalf of their loved one before the Court, to let the Court decide whether or not their claim was justified.
A Trial was first due to take place in February 2016 but was stood down the day before commencement, because the Court could not find a Judge who was available for it.
In March 2016 the Claimant invited the Defendant Trust to engage in negotiations to hopefully agree compensation but the Defendant Trust declined this.
The trial was thereafter listed for a second time – to commence in June 2016.
Trial commenced in June 2016, with all parties (including the bereaved family), their solicitors and barristers as well as two experts in attendance at Court.
After hearing the Claimant’s expert, the Defendant did not put their expert on the stand and instead finally made a settlement offer (during the interval on the first day). The offer included compensation for the death that had been caused, and was accepted by the family.
The Judge who had heard from both parties during the trial was critical of the fact that this claim had reached trial at all, in light of the admissions made by the Defendant Trust. The Judge was very critical that no compensation offers had been made. Furthermore, the Court was incensed that two NHS doctors had been taken away from their NHS duties, in order to give evidence in this case, which it said should not have reached trial.
A complaint has now been made to the NHSLA, about the appalling way in which the NHSLA have conducted this case, clearly falling foul of the NHSLA’s own aim.
NHSLA have confirmed they are investigation our complaint.
CASE 2 – Medical Negligence Claim
Another example of poor management by the NHSLA is this case in which negligent care after a routine operation led to pain, suffering and the sad death of a patient.
We were instructed by the bereaved elderly widow.
An inquest took place into the death, when several doctors of the Defendant Trust gave evidence, setting out that they had carried out an internal investigation, which found that the care provided to the patient had been the worst they had ever seen. They apologised to our client, the widow. Changes in working practice were announced and in fact, the Defendant Trust clinicians confirmed they were using this case as an example to their staff to show them how care should not be given.
The Coroner issued a rule 28 letter to prevent future deaths to the Chief Executive of the Hospital, forcing the Hospital to confirm the precise nature of the changes in working practice that had been made after the death, and explain how in future the mistakes made would not happen, thus how future patients would be kept safe.
Proceedings were served on the Defendant Trust in December 2013. With it, the Claimant served her expert report which confirmed the death of her husband had been caused by the negligent care. There was no formal requirement for her to have served this report, but she wanted to show all her evidence to the Hospital in the hope the claim would reach an early settlement.
The Hospital then served a Defence in March 2014 in which some negligent care had been admitted, but other instances of negligent care were denied, even those that had previously been admitted under oath at the Inquest! Causing the death was also denied.
In light of some of the denials by the Defendant Trust, the parties had to each instruct 2 experts.
The Claimant thereafter again sent all her expert evidence to the Defendant Trust before the deadline was due for this, voluntarily, in the hope a settlement could be reached soon. She also invited the Defendant Trust to enter negotiations in March 2014 (and repeated her invitation multiple times), but to no avail.
The Defendant Trust offered to pay her compensation in the amount of £5,000 in April 2014. This offer was not accepted.
The Claim, therefore, continued before the Court.
At the first administrative hearing in September 2014, the Judge (having been made aware of all the evidence by the Claimant) was very critical of the fact that the Defendant Trust continued to defend the claim, strongly urging the Defendant to settle the case.
A year later in March 2015, the Defendant Trust confirmed they were not going to serve any witness statements, nor would they serve expert evidence in support of the denials set out in the Trust’s defence.
A full admission of negligent care causing the death was subsequently received from the Defendant Trust.
The Claimant then asked the Defendant Trust to shorten the timetable set by the Court in her claim, in light of the admissions made, in the hope of bringing the claim to an end sooner. The Trust refused this.
In September 2015, the Defendant made an offer of £27,500. This was rejected.
The trial was scheduled to start in August 2016.
In April 2016, the Defendant made an offer of £40,000 which was accepted by the Claimant.
A complaint has been made to the NHSLA, and a response is awaited.
 http://www.nhsla.com/AboutUs/Documents/NHS_Litigation_Authority_Annual_Report_and_Accounts_2015-2016.pdf, p.32  Ibid., p.28.
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