The NHS Litigation Authority ends up paying damages in more than three-quarters of cases even after the issue of proceedings, the Gazette can reveal.
The authority closed 2,514 cases in 2015/16 with the payment of damages, compared with just 797 that were successfully closed without any compensation payment, figures obtained through freedom of information requests reveal.
The figures show starkly how expensive cases can be once proceedings are issued: in the 3,281 cases settled before proceedings were issued, claimant costs last year were £65.7m. In the 2,514 clinical claims closed after proceedings were issued, claimant costs jumped to £213.1m.
Total legal costs where cases settled early were £52.7m, compared with £258.6 where the claims were prolonged.
The Society of Clinical Injury Lawyers (SCIL), which obtained the figures, says the fact that 76% of extended cases still led to damages shows defendants are drawing out meritorious claims unnecessarily.
SCIL chair Stephen Webber said: ‘The NHSLA is defending cases too long and increasing costs. They are either being given bad advice or they are ignoring good advice.’
Webber said defendant behaviour, including failure to provide prompt disclosure or to make early admissions, is causing cases to be settled late in the litigation process.
However the NHSLA told the Gazette that the figures are misleading as proceedings can be issued for various reasons, including limitation or because the settlement requires court approval.
A spokesman added: ‘The NHSLA has no reason to prolong cases and works closely with many specialist claimant lawyers to settle justified claims fairly and as quickly as possible, resolving thousands of claims every year by negotiation.
‘For claims valued at less than £10k, this takes on average less than a year. It is sometimes necessary to defend cases in the interests of the taxpayer however where they are without merit and just under 5,000 claims are resolved annually without payment.’
This is a pivotal moment in the debate around legal costs for clinical negligence claims. Last week, national newspapers launched a front-page offensive aimed at the firms which make the highest fees from claims involving the NHS.
The Telegraph, using figures passed on by the NHSLA, said legal cases are costing the taxpayer £1.5bn a year, quoting Conservative MP James Davies as saying fees were ‘grossly inflated and morally questionable’. The Mail on Sunday pictured Irwin Mitchell head of specialist medical negligence Lisa Jordan holding a glass with the headline: ‘No wonder she’s cracking open the bubbly’.
The media assault would appear to suggest the government is close to publishing a long-awaited consultation on fixed recoverable costs for clinical negligence claims.