Cost of NHS medical negligence in England reaches record levels - the hospitals with most claims for damages

England’s under-pressure NHS is facing a record bill for future medical negligence claims, figures show. The amount which will be needed to settle these claims has risen by 52% in a year to an astonishing £128.2 billion, a figure similar to the NHS’ entire annual budget.

Its dispute-handling body paid out £2.4 billion in damages and legal costs for clinical negligence claims in 2021/22, a 9% rise from the year before. More than a third of this cost related to maternity claims. The figures also show the number of claims against every NHS trust in England.

‘When Lucas needed help the most he was badly let down’

Eight-year-old Lucas Whitehouse has cerebral palsy and global development delay after mistakes during his birth meant his brain was starved of oxygen. He uses a wheelchair and is expected to need two carers around the clock for the rest of his life.

Shortly after his birth in 2014, parents Rebecca and Dan, from Enfield, London, instructed medical negligence lawyers at Irwin Mitchell to investigate the care mother and baby received at the North Middlesex University Hospital. The trust soon admitted liability and apologised and a Root Cause Analysis Investigation Report by the trust found 38 issues and factors with the family’s care.

Dan, 41, said Lucas had been in the breech position, meaning his body was born before his head. He said: “When his body was delivered, they left it too long before they delivered his head. The frustrating thing is that he was a healthy child until a minute before they delivered him.”

Lucas’s care needs could only be established when he was older so a financial settlement was finalised last year. The money is held in a trust and any spending must be approved as being for Lucas’s care. The family are buying a car with a wheelchair ramp and plan to build a fully accessible house to allow Lucas to live as independently as possible.

Rebecca, 42, said: “Finding out afterwards that Lucas’s injuries could have been avoided if the correct guidelines had been followed and staff were properly trained has been the hardest thing to accept. It’s difficult not to think that when Lucas needed help the most he was badly let down.

“Despite everything he’s been through, we’re so proud of Lucas. He’s an absolute fighter and we feel so blessed that he’s our son. Each day he amazes us with the courage and determination he shows to not be defined by his condition. His laughter would make anyone smile.

“All we want is for him to have the best life possible. Knowing that the support and care Lucas needs is guaranteed for the rest of his life is a huge relief.”

Dan said in the main, the NHS did “a good job” and that when their daughter Lily was born at another hospital two years later, the staff were very good with them. “They went out of their way to make sure we were well looked after,” he said.

England’s medical negligence bill

The dispute-handling body NHS Resolution is facing a huge 52% rise in the amount needed to pay claims it is likely to receive in future. This now stands at £128.2 billion - almost equal to the entire annual NHS budget of £136.1 billion. NHS Resolution said the increase was due in large part to a change in the way the figure is calculated.

The sum, which will fall due in the years and decades ahead, includes cases where settlements have yet to be made as well as existing agreements to make regular payments to fund people’s care for the rest of their lives.

Two thirds of this cost is due to negligence in maternity services, an area which can attract very large claims because catastrophic mistakes during birth can leave someone needing a lifetime of round-the-clock care.

NHS Resolution chief executive Helen Vernon said: “We will be accelerating our work with others working in healthcare safety to improve outcomes for patients, with a particular focus on maternity.”

In the body’s annual report, Ms Vernon spoke of her concern about the “continued rise in the costs of compensation claims for clinical negligence” and welcomed a plan by the Government to set out ways of addressing these rising costs.

NHS Resolution paid out £2.4 billion in damages and legal costs for clinical negligence claims in the year to March 2022, £2.2 billion of which was from its main scheme for hospitals.

The number of claims settled through this hospital scheme in the year - 10,078 - was similar to the year before. The rising cost of the scheme is instead down to the growing financial cost of average settlements. In particular, NHS Resolution said, there was an increase in damages and legal costs from high-value claims - those worth more than £3.5 million.

How different hospitals’ medical negligence bills compare

Individual hospital trusts do not generally pay their own medical negligence bills. Instead, they pay a fee to be part of risk-pooling schemes run by NHS Resolution, which then settles claims on their behalf. Providers with more and higher-value claims have to pay higher fees.

It is very difficult to make fair comparisons between different hospitals’ negligence bills. Hospitals which are busier, and which offer riskier procedures, will attract more claims than quieter hospitals.

Those with maternity services will usually have larger bills than those without, because maternity payouts can be particularly costly. Lastly, hospitals which have been in NHS Resolution schemes for longer can have more claims, as cases can date back many years.

Figures published by NHS Resolution show the number of successful claims against every NHS trust in England in 2021/22 and the amount paid out in damages and legal fees.

Looking at the number of successful claims which were closed in the year, London’s Barts Health NHS Trust had the most, at 170.

But in terms of the size of the damages payouts, Imperial College Healthcare NHS Trust, also in the capital, came top. Its 62 successful claims last year are expected to cost a total of £76.8 million in damages, excluding legal fees.

‘Settlements are not lottery wins’

Lisa Jordan, head of medical negligence at one of the UK’s largest law firms, Irwin Mitchell, said every year they represented many patients whose lives had been impacted by unnecessary medical mistakes.

She said: “All of these patients would rather the negligence had never happened and the settlements are not lottery wins, they pay for vital rehabilitation and support to help them get their lives back on track. In the case of birth injuries, it pays for a lifetime of specialist care for people left severely disabled.

“Each case is a chance to learn lessons to prevent the same things happening time and again.”

Ms Jordan said some of the reasons for cases they saw year-on-year involved issues such as birth injuries, misdiagnosis of sepsis and amputations from diabetes complications, adding: “The best way to reduce costs and claims is to reduce the number of avoidable errors. Patient safety should be the fundamental priority in all medical care. We continue to campaign for improvements in the health service, including in maternity services.”

Medical negligence across the UK

Health is a devolved matter and the UK’s other home nations run separate schemes to handle medical negligence against the NHS.

Northern Ireland’s figures for medical negligence claims against the NHS in 2021/22 are due to be published next month and Scotland’s will be published next year.

Figures for medical negligence claims in Wales are not routinely published. A Freedom of Information request by the Welsh Conservatives revealed 730 claims were made in 2021/22, with 462 settled at a cost of £66.4 million. This is a rise from the £64.1 million paid out in 2020/21 and £41.1 million 2019/20.