Money could be saved in legal claims against the NHS if it were to uphold its duty to be transparent when patients suffer harm, lawyers representing injured patients have said.
The Association of Personal Injury Lawyers (APIL) says that “arduous legal battles” are avoided when NHS Trusts admit failures when they happen, which they have a direct obligation to do under the statutory duty of candour. But the duty is not observed universally across the health service.
“Many injured patients who go to a lawyer have unanswered questions about what happened. They feel kept in the dark, not given any explanation for their loved one’s injury or death, only to learn later that they were victims of negligence,” said APIL executive committee member Suzanne Trask.
“This breaks down trust between the patient, their family and the doctors. They feel let down. The NHS Trust knows what happened and holds all the information, yet injured patients and their lawyers must embark on their own investigations, forced into arduous legal battles which drive up delays and costs. It would be avoided if the NHS were open,” she said.
APIL’s comments come as the Public Accounts Committee scrutinises the cost of settling clinical negligence claims. The Department of Health and Social Care is also set to conduct a review.
“Where the Trust is open and transparent about failures, the lawyers on both sides can get on with the job of making sure the injured person’s needs are met,” said Ms Trask.
The NHS body responsible for litigation, NHS Resolution, acknowledges that ‘the longer cases run for, the higher the costs’*.
APIL analysis has found that a typical clinical negligence claimant waits almost nine months longer for a claim to settle when compared with ten years ago. This is an increase of 51 per cent.
“A supportive environment would ensure the duty of candour is always met, and opportunities for learning embraced. But there are repeated reports of toxic cultures and poor leadership. The NHS has the power to make its negligence less costly, and the process better for victims so they can get the help they need in a timely way,” Ms Trask went on.
“Trying to avoid facing the harm that has been caused prevents lessons from being learned. Clinicians should be enabled and empowered to do what is necessary to stop the same failures from being repeated,” she said.