We must not forget about the interests of injured patients when discussing clinical negligence litigation reform

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John Tingle discusses some recent patient safety and adverse health care event reports.

John Tingle

John Tingle discusses some recent patient safety and adverse health care event reports.

The Government is currently looking at reforming the clinical negligence system and a consultation paper is expected. The House of Commons Health and Social Care Committee, Chaired by Jeremy Hunt recently reported on NHS Litigation and advanced some interesting proposals. There was discussion amongst other matters of no fault-based liability and the extent to which our tort based clinical negligence system should advance patient safety in the NHS. This latter discussion is interesting as it raises the point of the nature and purpose of suing in the tort for clinical negligence.

Exceeding the remit

The main aim of the parties in a case is surely to obtain compensation within an adversarial setting and not to try and improve system wide NHS care, learning? That must go beyond the remit of tort law and the parties themselves. The Bar Council in their evidence to the Committee said much the same:

“. Litigation has never really been understood to encourage lesson learning and commitment to change and indeed to suggest the tort system should encourage this, as a principal aim, is to misunderstand the purpose of tort law which is to compensate the victim and not to punish or prevent recidivism by the tortfeasor. (p5)”.

The Bar Council also queried whether it is correct to say that there is a clinical negligence system. We are talking about the general tort litigation system applying to medical cases. It is not a separate system.

The clinical negligence reform debates

In the clinical negligence reform debates, we see stakeholders, camps of opinion. Those that argue that the costs of clinical negligence are spiralling out of control. We also have those who argue that that patient, injured by those who were meant to care for them, have a right to access justice which should not be compromised. These are views expressed in  The House of Commons Health and Social Care Committee  report and elsewhere.

We have a tort system based on putting the injured patient back in the position that they were in  before the injury and arguably there is no good reason for treating these claimants differently from those for example injured in a factory, workplace or other area? Both sides of the debate raise good points.

Do not forget the injured patient

There is sympathy with the economic view and there must be a balance drawn. At the same time however, a patient may have suffered the most profound negligent injuries, perhaps losing their life. We must equate patient losses with system costs. A recently published clinical negligence case forcibly brought this point home to me.

Charlotte’s Case

Deborah Nadel, Fieldfisher solicitors acted for Charlotte, a four-year-old girl who suffered terrible injuries which included the loss of all four limbs. The case settled for a sum of in the region of £39 Million. The report states:

“When her father took her to hospital, Charlotte had a temperature of more than 39 degrees, had vomited and had a high heart rate. She also had leg pain and her father described her as drowsy and behaving differently. All these symptoms, according to NICE guidelines, should have immediately raised a red flag for sepsis (blood poisoning) in children under five.”

Sepsis guidelines should have been followed and she was not properly treated. The hospital in the case admitted liability.

This case is so tragic, a four-year-old girl who has the rest of her life ahead of her and it has been ruined. How can money ever fully compensate for her loss? We need to be sure that any clinical negligence reform proposals do not impede access to justice for patients like Charlotte who have suffered such catastrophic injuries.

Healthcare Safety Investigation Board (HSIB)

Another incident which brought home to me the need to look more closely at the impact of adverse health care events, errors on the patient when discussing clinical negligence reform is in a report by the HSIB.

The report looks at health care staff access to critical patient information at the bedside and how this can be improved. In the report there is a discussion of several issues including proper nursing handover procedures, use of notice boards, confidentiality and so on.

What happened

It is stated in the report that a patient who should have received cardiopulmonary resuscitation (CPR) was mixed up with a patient who was down not to receive it. The patient who should have received it, did not when it was needed and died. There was a mix up with names, both had the same forename:

“HSIB found that misidentification of the Patient, and limited access to critical information about the Patient at the bedside delayed his treatment(p5)”

Here we have a patient who might have been given the chance to live by CPR but was denied that chance over a mix up.

NHS Never Events

History does not serve the NHS well when it comes to learning patient safety lessons from past adverse health events and to changing practices. Adverse health care events that should never happen stubbornly persist. The latest NHS England Never Events Report details what I would regard as some unforgivable errors on patients.

The report states that 295 Serious Incidents appeared to meet the definition of a Never Event in the official list and had an incident date between 1 April and 31 December 2022.There were 134 wrong site surgery Never Events recorded and these included:

Gastroscopy intended for another patient 1.

Removal of both ovaries when surgical plan was to remove one of them 1.

Removal of ovaries when surgical plan was to conserve them 2.

The reports states there were 71 retained foreign object post procedure within the reporting period. The report also identifies the NHS hospital Trusts, health care providers where Never Events occurred, and one has 9 recorded.

The reports of Never Events in the NHS compound the need for patient’s interests, what they have suffered, to be factored into any clinical negligence reform debate discussion, more than it is at present. Some newspapers and media outlets still talk unhelpfully about patients, ‘winning compensation’ like it is some form of jackpot. They are clearly not winning; they are being compensated for negligence. We can discuss the aims and objectives of the clinical negligence system but behind all this is a damaged patient and this should always be remembered.



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