News / Scheme offers better outcomes for families and cuts legal costs

NHS Resolution, which runs indemnity schemes for health services in England, introduced the early notification scheme five years ago. It requires trusts to report cases early where there is evidence of brain injury, which in many cases leads to cerebral palsy. The aim is to provide families with a faster, more caring response when a baby suffers severe harm.

Sangita Bodalia (pictured), NHS Resolution’s head of legal for the early notification team, said: ‘The purpose is to remould the traditional litigation process to deliver a more upstream approach to give better outcomes for families and faster learning for the health service.’

Under the traditional process, she adds, a family might first issue a complaint about the care received during delivery and then instruct solicitors, who would undertake a lengthy investigation looking at the medical records and involving clinical experts. This could take four to five years before a claim can be made and, at this point, NHS Resolution might start its own investigation, which could take a year or more. Often this means a child doesn’t get a decision on liability until they are 10 or older.

The early notification scheme flips the process. ‘What we try to do is have an early investigation – an early assessment of risk – without waiting for a family to go and instruct lawyers and issue a claim,’ says Ms Bodalia.

‘Then we try to give them enough information in a letter at the end of the investigation, which will clearly inform the family whether an admission of liability will be forthcoming based on the evidence we have.’

NHS Resolution reported on the first year of the scheme in 2019. But a second report detailing progress since then suggests the scheme has had success in meeting its goals.

Although a more thorough evaluation of the scheme is planned for 2023, the report looked in detail at 20 of cases involving hypoxic brain injury, where the brain is starved of oxygen, often leading to a diagnosis of cerebral palsy.

Under the early notification scheme, it took on average of 18 months from birth to provide an admission of liability. This compares with an average time for non-early notification cases of nearly seven years. The reduction in time can reduce stress for the family and lead to earlier interim payments, until the full long-term care needs of the child can be determined.

The earlier investigation also helps clinical staff speak about the incident, give evidence and learn from the events.

There can even be costs savings, with the average defence legal costs for the early notification cohort reduced by around one third – from about £34,000 to less than £12,000.

Since the scheme started, NHS Resolution has identified more than 400 claims, some 75% of which include proactive early investigations. 

The combined savings are not insignificant. However, the criteria have been tightened, following experience in the first couple of years, to be focused on claims that are most likely to lead to high-value financial compensation.

There is also the possibility that claimants’ legal costs will be reduced. These costs are often paid by NHS Resolution when liability is admitted. According to Ms Bodalia, this will be considered when the scheme is evaluated.

However, she said, for claimant costs to significantly reduce this would depend on a change of mindset among some claimant lawyers, who may not be happy to wait for the NHS Resolution investigation to be concluded.

‘We would argue that there is no need to incur these early investigation costs, but some claimant lawyers may still decide to go ahead, which is their prerogative,’ she said.

NHS Resolution was encouraged by the way lawyers have responded, Ms Bodalia added. They could generally see the benefits for their clients and had been prepared to change how they worked in response.

The cost of clinical negligence claims overall rose again last year. Actual payments made by NHS Resolution from its clinical schemes such as the clinical negligence scheme for trusts (CNST) increased by nearly 9% to £2.4bn, up from £2.2bn in 2020/21.

Overall, the provisions for liabilities arising from claims rose by a staggering 55%, or £45.8bn, to nearly £129bn, although the vast majority (£42.6bn) was related to a change in the Treasury long-term discount rate.

The cost of CNST claims incurred as a result of incidents in 2021/22 was £13.3bn, up from £7.9bn – again with the discount rates being the main cause of the increase. However even without the discount rate change, the costs rose from £7.9bn to £8.7bn – a 10% increase.

Maternity cases continue to dominate the costs of clinical negligence in the NHS, with payments often needing to cover long-term care and support for the child’s whole life.

Obstetrics in 2021/22 accounted for just 12% of all claims reported in the year – the same percentage as emergency medicines and orthopaedic surgery. But they accounted for 62% of the £6bn costs of those claims.