The NHS Fails to Learn from Their MistakesPublished on: 18 September 2016
There is no system in place in the UK for our hospital trusts to learn from each others’ mistakes.
As a solicitor specialising in the field of clinical negligence, I act on behalf of patients who have suffered serious injury as a result of mistakes or omissions in the management or treatment of their condition/illness. Negligence from our healthcare system is rare but it can have devastating consequences.
We are all aware of the lack of resources facing the NHS and although the number of claims reported has declined over the past two years, the amount paid out in damages and costs for successful clinical negligence claims has increased. It is logical to suggest that if we can decrease the legal costs more can be spent on medical staff, equipment, training etc.
I am aware of the statistics that many patients who are injured, potentially, as a result of medical mistakes do not go to solicitors. Most people feel very uncomfortable at complaining or even thinking of bringing a claim against the NHS, although sometimes they have to because their lives have been effectively devastated and they are unable to work again or live with chronic pain and disability. Some of my clients feel guilty they are pursuing a claim but I advise them that clinical negligence claims play a very important role in ensuring that standards in healthcare are maintained, and mistakes are brought to the notice of practitioners so that they are not repeated, and that there is a learning curve to improve care in the long run.
No system in place to learn from each other
Imagine my shock when I discovered recently from a leading Civil Servant, who is involved in introducing the fixed costs scheme for clinical negligence claims, that there is no system whatsoever in the United Kingdom for the various NHS Trusts to learn from each others’ mistakes and so prevent further injury to patients.
This information appalled me because we see the same incidents of negligence repeated again and again followed by the same defences and yet resulting in an award for damages for the injured patient. Legal costs are effectively driven up by the NHS fighting cases which they have lost in the past. Some examples are failures to carry out the mandatory triple assessment when a woman presents with a breast lump, leading to a long delay in diagnosis and treatment, failures to check blood test results after a patient has been discharged from hospital and ensure that abnormalities are investigated, failures to err on the side of caution and proceed to emergency caesarean section in labour when there are signs of maternal infection and baby in distress, and failures in surgery to check that nicked internal organs are repaired before closing.
Apparently lessons learned from clinical negligence cases may be communicated within a hospital trust but are not shared amongst the other hospital trusts in the UK. So if a mistake injures a patient in Bournemouth the circumstances will not be communicated to Shrewsbury.
The NHS is surely fundamentally failing the public here
We all make mistakes all the time and the important thing is learning from them. This is something we tell our children from the age of infancy. The National Aviation Authority has mandatory occurrence reporting when something goes wrong. Learning from accidents and incidents is part of every safety professional’s toolkit and yet our own National Health System has no provision for this learning. It is the way we all improve. Mistakes have the power to turn you into something better than you were before. If there are less mistakes there will be less claims and therefore legal costs will be reduced.
Instead the government is trying to reduce its legal costs bill by introducing fixed costs so that regardless of the amount of work undertaken, a solicitor will only be only entitled to a finite sum for their efforts to win a case, and maximise damages for the injured patient.
Many cases we abandon
In order to maintain profitability and remain in business, solicitors will have to ensure they work within the costs limits allowed rather than be paid for the work necessary on a case. I am afraid this will mean that it is not likely to be commercial for us to investigate and scrutinise the case in detail and question both lay and expert witnesses thoroughly, in order to obtain the best evidence. My department has been approaching cases like this for many years and consequently we win far more cases than the national average; we have a reputation for maximising damages and ‘going the extra mile’ for our clients. There are many cases that we abandon following investigation, because we discover the patient has been injured as a result of bad luck rather than negligence. Usually we are acting under a ‘no win no fee’ agreement and do not get paid for the work we have done in investigating the unsuccessful case.
Dropping cases due to lack of expert evidence is part of our work because although we are Law Society and AvMA panel specialist clinical negligence lawyers, we are not specialised doctors and we really only know whether a case is likely to be successful once we have instructed the correct medical expert who has the specific intrinsic knowledge to provide an opinion upon what went wrong in a particular case. For example, if a patient suffers paralysis because red flag symptoms were missed indicating urgent spinal surgery, you need to go to a Consultant Neurosurgeon with significant experience in operating in these circumstances.
The fact the government is putting its energy into effectively cutting legal fees available to injured patients, rather than firstly ensuring they learn lessons from the mistakes that are made time and time again, strikes me as a complete misunderstanding of the key issue causing the injuries in the first place.
Safety is a cheap and effective insurance policy
I have acted for a 40 year old mother of four children who was running a family business with her husband and was erroneously prescribed a huge overdose of high dose steroids which effectively left her disabled and in chronic pain for life, and requiring care and therapies for the remainder of her life.
I have acted for children who have sustained permanent brain injury because their deliveries were not managed properly and practitioners did not err on the side of safety.
I have acted for the families of many patients who have died due to negligent surgery, failure to recognise and treat sepsis, long delays in diagnosing cancer and even IV overdose of paracetamol in hospital leading to liver and multi organ failure.
Proud of our NHS
These claimants and their families were not after a “fast buck” by being litigious but their lives had been devastated by the injuries they shouldn’t have sustained.
As proud as we are of our NHS, we all know improvements can be made, but that will be far more difficult if we take away the opportunity of injured patients bringing claims which will compensate them for their injuries and at the same time, try and ensure the same mistakes are not made again.
This shocking fact is obviously not publicised but I feel strongly that the general public should know about the failure of the NHS to learn from their mistakes between hospital trusts. Real change could be achieved if a system is put in place so that medical staff, throughout the country, are made aware of what can go wrong so that it doesn’t happen again.
Solicitors are not popular and our grumbles are easily dismissed. However, this information affects everybody. I personally could live with losing my job if care in the NHS is improved.