As a new National Audit Office report shows that costs have more than tripled over the past two decades, many say that the existing approach to legal costs needs to change.
The annual cost of settling clinical negligence claims has more than tripled over the past two decades, from £1.1 billion in 2006-2007 to £3.6 billion in 2024-2025 due to increased claim numbers and the rising costs of settlements.
A new report from the National Audit Office (NAO) reports that between 2006 and 2007 and 2016 and 2017, the number of settled clinical negligence cases more than doubled, from 5,625 to 11,397.
The cost of clinical negligence in England appears much higher than in many other countries, as the UK offers universal healthcare, does not cap compensation, and has a more comprehensive understanding of the true cost compared to other nations.
NHS Resolution and the Government Actuary’s Department estimate that the cost of clinical negligence cases will continue to increase each year, with annual payments potentially reaching £4.1 billion by 2029-30.
“Despite progress in containing the number of clinical negligence claims in some specialities, the increasing cost of the small number of very high value claims is driving higher costs for taxpayers,” said Gareth Davies, head of the NAO.
“Reducing harm to patients is clearly the best way of containing this cost. Alongside this, DHSC [Department of Health and Social Care] should consider whether the existing approach to legal costs remains proportionate for all claims, including whether alternative methods to compensate for negligent treatment could provide better outcomes for patients, with less cost overall,” he continued.
Unsurprisingly bleak
The figures are on a par with those reported by NHS Resolution in August this year. It said that NHS negligence claims had risen almost 11% over the past year to £3.1 billion.
The response to the report was unsurprisingly bleak.
“The report from the NAO has shone an important light on the cost of clinical negligence,” said Rosie Benneyworth, interim chief executive of the Health Services Safety Investigations Body (HSSIB).
“Clinical negligence costs are only part of the picture. When combined with other data on patient harms, it is a stark reflection on the true cost of safety incidents and failures – causing human suffering and carrying a huge financial burden,” she added, pointing out that the Organisation for Economic Co-operation and Development (OECD) suggests that this could be 13% of healthcare spend – a potential cost of £25 billion each year in England on safety failure.
To reduce the costs associated with unsafe care, the number of recurring safety incidents, and the resulting harm to people and their families, it was crucial to look “beyond the technical solutions to legal liability and focus on prioritising patient safety in a proactive way,” she said.
The Association of Personal Injury Lawyers (APIL) also focused on the human cost.
APIL executive committee member Suzanne Trask pointed out that one of the reasons for the increase in claims was that the cost of providing care has risen exponentially due to broader economic factors, including the provision of carers.
“Looking after the needs of people who have been harmed is inherently expensive,” she admitted.
But it cannot be overlooked that the rate of avoidable harm in the NHS has also increased. The bigger picture, she emphasised, is the human cost. “Negligence and suffering are at the root of every penny spent on trying to put it right,” she said.
Not sustainable
“Behind these figures are real people whose lives have been changed by avoidable harm – the focus must stay on prevention and accountability,” commented Matilda Blundell of specialist medical negligence law firm Tomlin & Partners.
The response from Steven Davies, head of legal services at Medical Protectio, said that it was right to question whether the sums paid out on NHS clinical negligence claims are sustainable and said it was welcome that this issue is starting to get attention.
“It is vital that quick steps can now be taken to introduce fixed recoverable costs in relation to legal fees combined with the development of a comprehensive strategy that balances fair compensation for patients and affordability for the NHS and society,” he said.
