Costs of clinical negligence

In response to the increasing cost of higher-value claims, NHSR should: ? identify how much inflationary pressure is uncontrollable within the existing system to help inform policy decisions; and ? build on its current work to use artificial intelligence to analyse damages awarded across its portfolio and identify any inconsistencies in claims for similar needs.

Little is known about how much legal firms recoup in additional fees from claimant damages. ? NHSR should explore with the legal market whether there is the potential for greater voluntary transparency on fee arrangements agreed between claimants and their lawyers. ? If greater transparency cannot be obtained, NHSR should work with government to consider alternative mechanisms for understanding the proportion of claimant damages legal firms recoup in fees, and the reasonableness of this to inform future policy development, for example: reviewing firms? published fee arrangements; or seeking anonymised or population level data on the scale and distribution of claimant legal costs settled through damages.

In 2024-25, there was a 3.7:1 ratio of legal costs to damages payable for low-value claims (£25,000 or less). Legal costs also exceeded total damages for medium value claims (between £25,001 and £250,000). DHSC should consider whether the existing approach to legal costs remains proportionate for all claims, including whether alternative methods to compensate negligent treatment could provide better outcomes for patients, with less cost overall.

On the specific risk that claimants receive funding for private treatment or social care then go on to use publicly funded NHS or social care services instead: ? DHSC should assess whether the requirement to calculate damages based on privately funded care packages remains aligned with its vision of a modern NHS. ? If so, DHSC should examine the feasibility of reviewing patient records to understand the extent claimants have used NHS and social care services for treatments covered under compensation packages and whether these costs merit further mitigation.

Patients report finding the existing complaints process confusing and frustrating, and that the system does not always provide the answers or reassurance they are looking for. As part of the 10 Year Health Plan for England, the government has committed to improving the complaints process. In undertaking this work, DHSC and NHSE should: ? incorporate performance against complaint standards into future inspection and oversight regimes for health bodies, including monitoring whether there is sufficient local capacity and capability to carry out high quality investigations on a timely basis; and ? as part of the forthcoming review, ensure that NHS staff have the skills and capacity to deliver the duty of candour in practice