Litigation is a fact of life in the NHS, but shouldn’t be a trauma in itself…

Logic will never change emotion or perception. Edward de Bono

For 2015, the NHS Litigation Authority (NHSLA – apologies in advance for the acronyms) earmarked £56 Billion to cover litigation costs against the National Health Service.  This staggering number is almost double the previous years allocation of £31 Billion, and represents almost exactly half of the total NHS budget for the year.  While the National Audit Office are rightly investigating why such an insanely large number has been earmarked against an actual litigation settlement figure of ‘only’ £1.5 Billion in 2014-5, the trends are hard to contradict: in 2006-7, the NHS received 5,419 claims, more than doubling to 10,965 in 2015-6.  Ten years ago, £667 Million was paid in settlement, compared to £1.5 Billion for 2015-6.

More than 75% of legal claims result in an eventual settlement against the NHS, with the claimant trade organisation – the The Society of Clinical Injury Lawyers – alleging that a culture of “defend, deny, and delay” exists in the NHS.  The Care Quality Commission (CQC) note that in many cases the NHS handling of a complaint was representative of the following statement:

…an absolute nightmare. They deny everything… and take months to reply to anything. You ask them specific questions and you end up with very general policy statements.

As one of the vast and mostly silent majority of individuals who have benefited from the huge array of healthcare services provided by the NHS, we naturally feel a tension between wanting to support the best of the NHS, while feeling sympathy to those involved where healthcare, very occasionally, falls short of the high standards expected.

This perfect storm of frustrated and aggrieved claimants, a well-organised commercial litigation machine, and a perceived culture of “defend, deny and delay” seems to have some similar characteristics to the Personal Protection Insurance (PPI) scandal, which has only recently come into the “beginning of the end” phase for the financial sector.  Some of the factors which went into the resolution of the Payment Protection Insurance (PPI) scandal are worth investigating to gauge their applicability to the NHS:

Remember PPI?

Remember the media frenzy that followed the Judicial Review into PPI mis-selling by various financial institutions and their agents?  Very quickly, a specialist ecosystem of legal firms and associated agencies were spawned, using very efficient systems to support the huge numbers of outraged product purchasers claiming against their PPI vendors.  Shortly thereafter, the Financial Ombudsman Service significantly ramped up their resources and technical infrastructure to handle final adjudication in up to 200,000 cases per year – the majority being related to PPI claims.

This left banks, building society, credit card companies, loan companies and their agents in the situation of having to somewhat passively manage a huge caseload of very unhappy customers, often from a position of blindness to the scale of their own exposure.  Put simply, in the worst cases, financial institutions did not know how much money to set aside for PPI claims:  In the wake of the financial crash of 2008-9, this was not a good place for a retail bank executive (for example) to find themselves.

Very often, the first task of confirming whether a customer was justified in their claim was very expensive and time consuming, involving drawn-out trawls of legacy systems, or even archived physical documents such as microfiche.  In the most extreme cases, this process was so onerous that some financial organisations simply calculated it was more cost-effective to settle, without going through a process of discovery

In another life, I was involved in a project on behalf of a UK bank to provide them with a database of customers who’d paid for PPI on a particular banking product, using data we’d extracted from over 1,000,000 microfiche representing 500,000,000 + pages of customer statements.  Remember, these microfiche were their only source of the truth, but not easily accessible to the bank.  It was a fascinating project, completed in less than six months with minimum user intervention involving the resolution of many technical obstacles such as deteriorated fiche, complex rules and extremely challenging SLA’s.  The delivered dataset allowed this particular organisation to be proactive and make contact with all involved parties and their agents in advance of a claim.  The bank was able to understand and report on it’s exact exposure, and to mitigate reputational damage by proving pro-activity to the Financial Conduct Authority, The Financial Ombudsman Service, the media, and most importantly, their customers.

Summary

Lets look at the process by which a claimant currently pursues a claim against the NHS:

A claimant engages a legal specialist (either a law firm or associated claim management organisation), who validate the claim as far as it is known.

On the basis of a perceived valid claim, a Letter of Notification is issued to the relevant Healthcare Agency and the NHS Litigation Authority.  The claimant from this point will have expended legal fees, which will have to be paid by someone.  Remember, that in 75% or more of cases, the NHS settle, and that one third of the total cost of settlement is in legal fees.

At this point, the Healthcare Agency acknowledge the claim, assess it’s validity and assign a contact point.  At this stage costs are incurred by the Healthcare agency.  It is their duty to validate the claim and notify the claimants agents, and to research the case and to decide whether to settle or contest the litigation.

The case continues through increasingly involved and costly phases requiring detailed phases of discovery and legal interactions (Letter of Claim, Letter of Response, discovery, disclosure, court)…

Through each of these phases of complex interaction lasting years (in some cases), costs are incurred to the NHS, which are usually eventually covered from the overall NHS budget.  While it is proposed to cap the cost of legal fees in any particular claim to £25,000, this has not yet been legislated.  Well-documented cases exist where the claimants legal agency submitted bills many times the value of the claim to the patient:

Claim for costs struck out by court

“The claim arose out of the failure to diagnose
a tumour to the claimant’s kidney following an
attendance for chronic back and groin pain.
The trust admitted breach of duty but denied
causation and made an offer of £5,000.00
which was accepted. The claimant’s bill of
costs totalled £121,701.00. An hourly rate of
£400 per hour was claimed despite the bulk of
the work being conducted by unqualified staff.
In addition a 100% success fee was claimed,
which meant the true hourly rate claimed was
£800 per hour. A further concern was that the
claimant appeared to have the benefit of BTE
(“before the event”) insurance and had
entered into two CFAs (conditional fee
agreements – otherwise known as “no win, no
fee” arrangements).”

This quote was taken from the NHSLA annual report 2014-5, and could be argued to be biased against the claimants, but this only emphasizes the confrontational attitude between parties.

Litigation is a fact of life, and will not be going away for as long as our (relatively) free society exists. Reluctance to respond to the challenges of litigation and unwillingness to learn from experience are natural and human reactions, but are to be avoided.  Systems, resources, and experience do exist to help remove the friction of response, and to make it possible to avoid expensive mistakes and learn from those regrettable mistakes that happened.  By looking at how the commercial world has learned from mistakes and delivered better litigation response, the NHS have the potential to maximise their ability to deliver the best possible healthcare to our communities in a time of unprecedented pressures on the service…

 

Please leave a comment – we will be posting more on this, exploring specific aspects in detail, including more on technology use cases to support litigation management, General Data Protection Regulation, Corporate Memory and best practice in Record-keeping and more…

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