An NHS report has found clinical negligence claims to have risen by almost 18% in a year, revealing a leap from 10,129 between 2012/2013, to 11,945 between 2013/2014, an increase of 1,152 claims.

The annual report, conducted by the NHS Litigation Authority, provides an in-depth account of litigation expenditures and savings within the UK healthcare system, and details several potential reasons for the increase in clinical negligence claims.

Is the rise a temporary reaction to controversial legislation?

The NHS report suggests that the significant increase in the number of medical negligence claims coincided with the introduction of the Legal Aid, Sentencing and Punishment of Offenders Act (LASPO) on 1 ^st April 2013. This controversial piece of legislation was deemed to have effectively restricted legal aid for medical negligence claims, with former Labour Secretary Lord Bach claiming the act would harm “the disabled, poor and vulnerable, and those least able to defend themselves”.

The LASPO legislation also proved less advantageous to claimants than before, drastically reforming funding arrangements for civil litigation by banning referral fees, altering ‘no-win, no-fee’ arrangements, and preventing claimant lawyers from charging up to 100% success fees on their costs.

However, though the LASPO legislation was introduced in April 2013, the NHS report considers the “vast majority” of claims reported throughout the year to have been originally signed up to by claimants before this date under pre-LASPO, no-win, no-fee arrangements, enabling solicitors to charge a success fee on their costs, which they couldn’t do had the agreement been signed after the legislation came into effect.

As a result, any claims signed prior to 1^st April, yet progressing through the Court after this date, allowed firms to continue to reap the benefits the legislation sought to outlaw, suggesting the rise in claims is partly due to firms encouraging claimants to sign agreements prior to its introduction. As a consequence, there is every chance that the rise in clinical negligence claims won’t be repeated in 2014/2015.

Are inexperienced claimant solicitors responsible for the rise?

Clinical negligence is the result of a doctor or medical professional not fulfilling their duty of care towards their patients, resulting in cases such as death or serious injury due to medical error, or a misdiagnosis resulting in critical illness. However, the complexity of the law surrounding clinical negligence makes for a complicated process, one which the report also feels a number of solicitors are ill-equipped to carry out:

“[The authority] is dealing with more than ever new claimant solicitors. We have also seen an increase in poorly investigated claims and claims where the care clearly was not negligent being brought by lawyers who do not specialise in clinical negligence work.”

Moreover, the report also states that the Litigation Authority saved £1.4 billion for the NHS during the 2013/2014 period by ”robustly defending” unjustified clinical negligence claims, which amounted to just under half (44%) of all clinical claims over the 12 month period.

These statistics, alongside the estimated £75m saved as a result of challenging ”excessive and disproportionate costs”, certainly point towards under-experienced, ill-prepared and opportunist claimant firms as being responsible to some extent for the increase in clinical negligence claims.

Welsh health boards suffer under claims increase

In line with the NHS reports, figures have shown that Welsh health boards have paid-out a combined total of £171m in clinical negligence compensation since 2011, an amount which provoked the Leader of the Welsh Liberal Democrats, Kirsty Williams, to state:

"Obviously, those who received the payments did so properly and it is right that they are compensated for harm done to themselves or their family, but it is disturbing nevertheless that the payments needed to be made in the first place. The Welsh Labour Government needs to look at the root causes triggering these pay-outs”

Wales’ largest health board, Cardiff & Vale health board, paid out more than £25m in compensation over the last three years, peaking in 2012-2013 at £14m, an increase of £8.6m over the previous year, while Abertawe Bro Morgannwg health board topped this, spending £33.5m on clinical negligence compensation.

If you’ve been the victim of clinical negligence, or feel that your medical treatment was below satisfactory standards, feel free to contact a regulated legal firm such as ourselves for advice on your legal position. You can speak with one of our highly qualified solicitors by emailing enquiries@fonsecalaw.co.uk or phoning 01495 303124.