The total cost of harm from clinical negligence was £13.6 billion in the 2021-22 reporting year, according to an annual report from NHS Resolution, the arm of the Department of Health and Social Care that handles litigation. Sixty per cent of the cost of harm was for maternity claims, amounting to £8.2 billion for the year. NHS England spends £3 billion annually on maternity and neonatal services, a board paper published in March confirmed.

The cost of harm, which is defined as the current value of the estimated cost of claims expected or received from incidents in the financial year, includes an estimate of the lump sum owed for claims, future periodic payments and legal costs.

“We spend more on the cost of harm, when we could be spending more on prevention,” said James Titcombe, a bereaved father and campaigner at the Baby Lifeline charity.

Analysis by the Times Health Commission, following independent research by the charity Baby Lifeline, found that there were more than 10,000 clinical negligence claims brought against the NHS in 2021-22, with a total value of over £6 billion. Of those claims, 12 per cent were for obstetrics, accounting for 62 per cent of the total value, or £3.74 billion.

These figures did not surprise Titcombe, who became a central figure in the Morecambe Bay investigation after he lost his newborn son Joshua in 2008 due to significant failures in the maternity unit of the Furness General Hospital in Cumbria.

Instead of a culture of learning, Joshua’s death led to a trust-wide cover-up, the extent of which was revealed in the 2015 report of the independent inquiry. It concluded that 11 babies and a mother had died avoidably at the Cumbria trust between 2004 and 2013.

“There was basically a cover-up, medical records went missing, and there were huge discrepancies between what my wife and I knew happened and what the staff had reported as happening,” Titcombe said. “That process damaged me greatly and meant the trust didn’t learn.”

Now on the Times Health Commission, Titcombe has worked closely with Jeremy Hunt and the charity Patient Safety Watch to drive systemic change.

Last year NHS England was faced with record maternity litigation costs. Titcombe says that continual testing against national patient-safety frameworks is key to preventing a culture of denial that is still prevalent in trusts.

Referring to an independent investigation of the maternity and neonatal services in East Kent, which was published last October, Titcombe was struck by the similarity of the findings to the Morecambe Bay inquiry.

Failures at the Queen Elizabeth The Queen Mother Hospital in Margate and the William Harvey Hospital in Ashford between 2009 and 2020 included suboptimal care that led to significant harm, failure to listen to families and actions that made the experience of families distressingly poor. According to the report, the problems could have been tackled at eight separate opportunities. Had care been given to the nationally recognised standards, the outcome could have been different in 45 of the 65 baby deaths.

The UK has a compensatory system in obstetric cases in which the claimant must prove negligence. However, countries such as Japan and Sweden have introduced a no-fault compensation model where proof of negligence is not required.

Litigation claims against the NHS often take years to settle, leaving the NHS with significant financial liabilities as claims add up over time.

“For the families affected, the last thing on their mind is litigation,” Titcombe said. “They want the organisation to learn and they want to heal. They don’t want to be dragged through legal processes that re-traumatise them for years and years.”

In 2021-22, the health service’s financial liabilities for obstetrics claims reached £41.5 billion — £36.8 billion of which was for claims of negligence causing cerebral palsy or brain damage.

Sara Ledger, head of research at Baby Lifeline, said: “For the rest of their lives, these babies will need medical care and specialist equipment — years of payments to families for the necessary ongoing care of severely disabled children and adults.”

She said there were gaps in prevention strategies and “massive” workforce shortages that, if tackled, would save lives. “In our own research into the training that maternity healthcare professionals receive year-on-year, we found that maternity staff were often not being trained in key topics shown to be the main causes of harm and death in maternity in 2020-21,” she said.

“One of the main barriers to providing this training was lack of resource and funding.”

The NHS said: “Over the last decade, the NHS has made improvements to maternity services in England — with many fewer stillbirths and neonatal deaths — but we know further extensive action is needed to improve the experiences of women and their families across the country.

“The NHS is investing £165 million annually to grow our workforce, strengthen leadership and improve culture in order to do this. We will continue to work with NHS trusts, the government and our partners to make necessary changes and implement the recommendations from recent maternity reviews.”

NHS Resolution said it “aims to resolve claims quickly and fairly and where possible to keep cases out of costly and distressing court proceedings”.

It added: “Year-on-year the number of cases going to court has reduced and currently a record 77 per cent of cases are resolved without going anywhere near a court, with only a tiny proportion going to trial.

“Doing all that we can to improve the safety of maternity care is a priority for NHS Resolution. As a National Health Service body which is not a regulator but has a relationship with every provider of maternity services in England, we are uniquely placed to bring together patients and healthcare providers to help improve safety, sharing what works well, as well as the insights we have on what can improve.”