“Unprecedented” clinical negligence costs double in a year

By Niall McCracken

THE amount of money spent on clinical negligence cases has doubled during the last two years reaching what the Department of Health has called “unprecedented levels”.

Figures obtained by The Detail under a Freedom of Information (foI) request outline that the department spent almost £53million on clinical negligence cases between January and December 2013, compared to just over £25million in 2012.

The chair of the Assembly Health Committee, Sinn Fein MLA Maeve McLaughlin, says the latest figures raise concerns that the department is “staggering from one crisis to another”.

A spokesperson for the Department of Health Social Services and Public Safety (DHSSPS) said the scale of expenditure in the latest year was “unprecedented” and reflected the courts’ decision to “accelerate the process of addressing the backlog of open cases”.

A further FoI response received by The Detail reveals that during a six month period in 2013 there were two confidentiality clauses covering clinical negligence cases, despite department guidelines stating that they should only be used as a “last resort”.

“A CONCERNING TREND”

The Department of Health spending on clinical negligence was revealed by the Business Service Organisation (BSO) which said that there was a total of £25.3m spent on such cases between January and December 2012.

But between January and December 2013 this figure has more than doubled, with £52.9m spent on clinical negligence related costs.

A breakdown of the costs for 2013 shows that the majority of the expenditure can be attributed to compensation paid in damages at £37.8m.

A further £10.8m was spent on third party costs to the plaintiff – including solicitor, counsel and experts.

More than £4m was spent on the department’s own defence costs.

Rising expenditure on clinical negligence settlements continues to be an issue across the UK. The NHS Litigation Authority in England has reported an increase of £450m (69%) in clinical negligence costs between 2009/10 and 2012/13.

Health Committee chair, Maeve McLaughlin, says the latest figures raises questions about why Stormont’s health department was not better prepared for the high cost.

“I think the increase in cost for clinical negligence is a very concerning trend.

“I understand that legal fees are a reality that a department with a remit like health is inevitably going to have to deal with.

“However this is a substantial increase and it seems that in the last six to eight months the department seems to stagger from one crisis to another.”

In a statement to The Detail the department said that it had been aware of the pressures associated with clinical negligence settlements since autumn last year and this was reflected in its bids for further funding from the Assembly Executive in October and January, though those requests were unsuccessful.

A spokesperson said: “Expenditure on clinical negligence is largely driven by legal process and is a particularly volatile area which is subject to significant change.

“The scale of expenditure on clinical negligence in 2013/14 is unprecedented and reflects the courts’ decision to accelerate the process of addressing the backlog of open cases.

“This has resulted in a significant increase in the number of individual cases that have been settled in excess of £0.5m compared to previous years.”

“FAST TRACKING CASES”

In September 2012 Mr Justice Gillen issued a “protocol for Clinical Negligence Litigation” in Northern Ireland. It stated that it should be the aim of all parties and their representatives in clinical negligence cases to ensure that the matter is fully resolved within 48 months.

All medical negligence cases are now listed for review as soon as a writ is issued.

A spokesperson for the Northern Ireland Court Service confirmed that there are currently 187 cases listed for hearing over the next 12 months.

As previously reported by The Detail, the department was unsuccessful in its bid to secure extra funds from Stormont’s pot of unspent money to help plug the gap of the growing clinical negligence costs.

A Department spokesperson said: “We are currently considering the implications of the January Monitoring outcome and the impact this will have across the wider HSC budget."

CONFIDENTIALITY CLAUSES

Meanwhile, in response to a 2002 report by the Northern Ireland Audit Office (NIAO), the Department of Health outlined its intention to take “immediate action” to ensure that confidentiality clauses were not included in clinical negligence settlements.

The department acknowledged the “inappropriateness” of confidentiality clauses and its guidelines stated that they should only be used in the most “exceptional circumstances” and only when at the request of plaintiffs or co-defendants.

In a separate FoI response to The Detail the Health and Social Care Board confirmed that between April and November 2013 there were two confidentiality agreements contained in clinical negligence cases. One at the request of the plaintiff and the other at the request of a co-defendant.