NHS pre-1995 claims data – what’s behind the numbers?

Laurence Vick, Legal Director in Enable Law’s Medical Negligence team, acted for families affected by the Bristol Royal Infirmary paediatric cardiac surgery tragedies.

Here Laurence looks at recent interviews which he and Mike Bird, partner in the Truro office, gave to the BBC and ITV about recently released data on the cost of NHS negligence claims for cases pre-1995, and how this particularly relates to NHS Trusts in the South West region.

http://www.bbc.co.uk/news/uk-england-42442343

http://www.cornwalllive.com/news/cornwall-news/royal-cornwall-hospital-still-paying-1067953

Analysis of published on 16 January, found that payments made by the NHS on claims where negligence occurred before 1995 had begun to rise for the first time in five years.

The figures reveal that in the past five years, the Department of Health has paid out £152 million, including legal fees, to victims of mistakes made before April 1995 in England.

These figures are believed to be a combination of lump settlements and ongoing annual periodical payments under earlier settlements. The University Hospital Bristol and Royal Cornwall Hospital, Treliske both appeared in the top ten Trusts named with regards to these figures.

Bristol

University Hospitals Bristol’s payments of £6,234,047 for negligence occurring before 1995, was the third largest amount of any Trust in England. This time period coincides with what became known as the Bristol Children’s Heart Scandal which hit its peak between years 1990 and 1995 and these cases would largely be those from the last stage of damages settlements from that era. The Trust confirmed that 9 of the 12 claimants whose awards were included in this total had been children left damaged following heart surgery. It was significant that the failure rate at the unit dropped dramatically once the two surgeons involved in the scandal had been replaced, taking the unit from one of the worst performing to among the best in the country.

Cornwall

Between 2012 and 2017, the Royal Cornwall Hospital, Treliske had paid out £5.3m for claims arising from pre-1995 treatment. This was the 8th highest in the country. In Cornwall, the high sum paid out for pre-1995 mistakes has been mainly due to the 200+ claims brought against the Trust for injuries caused by disgraced Consultant Rob Jones, who joined the Trust in 1992. The claims were brought from 2012 onwards after RCHT went public about his failures, and most of the claimants were represented by Enable Law. The Trust commented that there had been a few other high-value cases.

What else is behind the data?
Claims arising from maternity failings account for more than two-thirds of these historic costs overall The rise in these payments is believed to reflect increased life expectancy and rising care costs; also the length of time it can take for complex childbirth and other brain injury cases to be resolved.
Over the last three or four years, according to NHS Resolution’s own data, the number of claims presented has dropped significantly – by about 15%, so that does suggest that it’s the value of claims that has gone up rather than the number of claims.

In any medical negligence case there is usually a three year period when a Claimant can bring a claim – however this is extended for children. Medical negligence cases for children can be made until their 21st birthday or beyond if they lack mental capacity. This can mean that payments for birth injury claims can be made many years after the original mistake.

It can be years before patients or families realise they may have a claim for compensation. Often they are simply not told, or are given an explanation which does not identify any mistake. This should change with the introduction in 2016 of the Duty of Candour – whereby hospitals and doctors are under a legal duty to tell a patient when something has gone wrong. Sometimes, our assessment of the impact of an injury and a child’s life-long care needs can only be made when they are old enough to predict their future needs over their lifetime .

It is the complex cases where children who have suffered severe disability or brain damage that will account for the larger amounts. Families receive damages as a lump sum followed by ongoing payments for the duration of the child’s life. The lump sum would usually cover compensation for the child’s injuries and lost earnings, care provided and the purchase of equipment, therapies, as well as new or adapted accommodation, particularly for physically disabled children where significant adjustments need to be made to allow them to live as normal a life as possible.

The other large cost is for ongoing care – many of these children require full time care – this may require additional care to support parents. Parents may be unable to work and this will therefore have a significant impact on them financially. Parents of children left with disabilities also have understandable concerns for the future and their ability to care for their child in the long term.
These compensation payments provide funds which will be paid for the rest of the child’s life, and will be managed professionally – meaning that families can rest assured that the child will always be looked after, however long they live.

So what does this mean?

Although this data is interesting, it doesn’t tell us anything about the safety of these hospitals. This is historic data and both Trusts mentioned have been affected by particular issues, which have resulted in them appearing high in the figures. Both Trusts have learnt from these incidents and made necessary changes.

Ultimately league tables such as this are not a helpful way of comparing safety, not least because the services provided by Trusts are different and affected by the demographics and needs of the local population.

What this investigation does do is shed light on the reasons behind compensation and the importance of claims in terms of raising awareness of issues that improve standards and in supporting families who have to deal with the impact of mistakes for the rest of their lives.