Over the last few weeks, NHS litigation costs have been making the headlines. Last month’s National Audit Office (NAO) report highlighted that ‘some trusts were already spending 4% of their income on clinical negligence’ and called for the government to do more to curb the costs (cited by BBC, 2017). With the recent announcement that litigation costs are to be one of four new areas scrutinised as part of the Getting It Right First Time (GIRFT) programme, we take a look at GIRFT’s progress so far and what might be expected from the litigation work stream.

GIRFT is the national programme, led by Professor Tim Briggs, that looks at improving care by tackling unwarranted variation from a clinical perspective. After the initial pilot, costing £220k, led to an estimated £30m to £50m savings in orthopaedic care within the first 12 months, the programme was extended to a further 30 medical specialities, supported by an additional £60m investment from the Department of Health in 2016. In this latest expansion, litigation claims will be scrutinised, in addition to three other areas – procurement, health service management and policy levers.

Overall, litigation costs the NHS billions each year. The scale of these payments also gives some indication of the impact on patients’ lives when, in a very small number of cases, things go wrong. NHS Resolution (the combined former NHS Litigation Authority, National Clinical Assessment Services and Family Health Services Appeal Unit) will collect £1.9bn from its members this financial year to meet the cost of clinical negligence claims, and projects this will rise to £2.69bn by 2019-20.

A recent King’s Fund report by Nick Timmins (June, 2017) included a summary of the initial insights into NHS litigation costs revealed by the GIRFT pilot programme, which looked at orthopaedics. There are more litigious claims in orthopaedics than any other surgical specialty and, prior to the report, claims had been rising, Timmins observed. The GIRFT report included 2011-12 data showing that the NHS paid out £137m on orthopaedic negligence cases, with each case costing £54,000 on average, and some trusts paying out as much as £154,000 per case. In 2013-14, the number of claims rose by 8 per cent, but in 2014-15, after the recommendations from the GIRFT orthopaedics programme had been implemented, they fell by 5 per cent and by another 8 per cent in 2015-16 (Timmins, 2017).

GIRFT is credited with helping hospitals reduce these litigation costs and make improvements in patient care, plus generate other savings. The GIRFT approach is to consolidate information from a variety of sources, much of it provided by the hospitals, and highlight variances in care decisions, clinical results, costs and other factors.

Some of the primary recommendations of the initial orthopaedic report included: fewer surgeons doing hip surgery (clinical results were better where surgeons did 35 or more of certain types of hip replacements per year); using the most effective devices; buying at the best price (the price being paid for identical cemented hip implants ranged from £595 to £854); and ring-fencing orthopaedic beds to reduce infection. Not only did these, and other measures, shorten the average length of stay, and reduce infection and revision rates (thereby improving care and reducing the risk of claims), they also generated direct procurement savings and reduced the need for expensive loan kit.

In the much anticipated second GIRFT report, released in August, recommendations were again made based on discussion of variances, this time focusing on general surgery. These included: increasing the use of day case surgery; learning from peers; increasing data accuracy; and opportunities in procurement (although there has been debate about the accuracy of the source data). Litigation was also covered. Between 2011-12 and 2015-16, the NHS received 5,367 claims related to general surgery, resulting in estimated settlement costs of £585 million. In 2015-16, general surgery accounted for 9% of all clinical negligence claims and 3% of costs (p42-43). The report also reflected on the lack of accurate documentation around procedures, making analysis of claims difficult and also meaning some claims could not be defended (Abercrombie, 2017).

An area that can often be overlooked in terms of liability and risk is commercial visitor activity on site. Commercial visitors are often present in theatre cases and in theatre areas, providing valuable expertise and support, and a hospital has the same legal obligations and duty of care as it does to hospital staff.

The NHS Code of Practice 2003 states, ‘Anyone who is invited into hospitals or any areas of clinical care in an advisory capacity is bound by the same legal and ethical obligations of those employed by the hospital’. So, commercial visitors become members of staff in the eyes of the law and the hospital is seen as an ‘employer’. The Management of Health and Safety at Work regulations (1999) therefore apply and the hospital has a responsibility to ensure their security and safety.

Additionally, the hospital as ‘employer’ is liable for the acts or omissions of commercial visitors as employees (known as vicarious liability), provided it can be shown that these acts or omissions took place in the course of their employment (i.e. visit to the hospital). This is especially important when considering that commercial visitors can pose an increased infection risk, often visiting multiple hospitals in a week and accessing high risk areas.

There are some simple ways that our own SEC³URE service helps hospitals mitigate these risks. The service checks that commercial visitors have up-to-date compliance with a hospital’s safety policies (i.e. training, insurance and immunisations). It also provides a documented audit trail of which commercial visitors are present in theatres (or other hospital areas) and their compliance status. Also, by implementing commercial visitor management, hospitals have found that the overall number of commercial visits is reduced (as unsolicited visits can be eliminated), thereby reducing the overall risks.

So, the new GIRFT litigation work stream will build on the initial work in orthopaedic and general surgery. HSJ reports that it will be led by orthopaedic surgeon John Machin, who will examine every trust’s litigation costs, starting with clinical negligence claims in orthopaedics, then going on to obstetrics and gynaecology. Reports are expected to be produced for each specialty by December 2018. GIRFT leader Professor Briggs says, “There is a massive opportunity in this. That data has never been utilised before to squeeze out unwarranted variation” (Coggan, July 18, 2017). It will be interesting to follow progress and see what further opportunities hospitals find for continually improving patient outcomes and working ever more efficiently.

Sources and reading

Abercrombie, J. (2017, August) General Surgery: GIRFT Programme National Specialty Report. Retrieved from www.gettingitrightfirsttime.co.uk

Briggs, T (2015, March) A national review of adult elective orthopaedic services in England: GETTING IT RIGHT FIRST TIME. Retrieved from www.gettingitrightfirsttime.co.uk

BBC (2017, Sept 10) Litigation ‘threatening NHS finances’. Retrieved from www.bbc.co.uk

Coggan, A. (2017, June 28) Briggs: NHS must stop ‘leaking’ money to private sector. Retrieved from www. hsj.co.uk

Coggan, A. (2017, June 28) Exclusive: ‘No way’ NHS should ask for extra funding before tackling waste. Retrieved from www.hsj.co.uk

Coggan, A. (2017, July 18) Trusts with high litigation costs to come under the spotlight. Retrieved from www.hsj.co.uk

National Audit Office (2017, Sept 7) Managing the costs of clinical negligence in trusts. Retrieved from www.nao.org.uk

Timmins, N. (2017, June 8) Why Getting it Right First Time is easier said than done. Retrieved from www.hsj.co.uk

Timmins, N. (2017, June 28) Tackling variations in clinical care: assessing the Getting It Right First Time (GIRFT) programme Retrieved from www.kingsfund.org.uk