Conclusion

The NHSLA are currently keen to highlight the cost of clinical negligence claims and the amount claimed in lawyers’ fees with suggestion of a compensation culture and greedy lawyers looking to profit from errors in the NHS system.  However, this detracts from the real issue that mistakes continue to occur and patients’ safety has not been improved. 

The patients we act for have a legitimate right to claim after being injured as a result of someone else’s negligence.  The impression of unscrupulous claimants trying to make a ‘quick buck’ and lawyers encouraging this in order to make a profit is not the reality; the clients we represent would always rather the incident had never occurred and no amount of money will ever make up for what they have suffered.  They do not chose to be part of the legal system, but have no option but to instruct a lawyer in order to obtain an explanation as to what happened and access to justice. 

The predominate driving factor for most claimants who contact the Medical Law & Patients’ Right department at Irwin Mitchell is to “ensure this does not happen to anyone else”; a phrase medical negligence lawyers hear repeatedly.  As a firm we are driven to helping those injured as a result of someone else’s negligence, ensuring access to justice and helping promote patients’ safety by ensuring lessons are learnt.   We do not simply drive the compensation element, but look to ensure lessons are learnt where the NHS themselves do not appear to have taken any action; this is important to our clients and important to us.

Irwin Mitchell has been the driving force behind a number of important decisions.  For example, in 2006 the firm represented the family of an elderly woman who died after suffering two falls from bed whilst a hospital inpatient.  By investigating a claim we established this had been due to a lack of maintenance of hospital beds.  Through involving the Health & Safety Executive we ensured improvement notices were issued and the problem addressed.  

In another case, Irwin Mitchell acted for the family of a 9 month old child who died following failures by paramedics to convey him to hospital due to a lack of proper assessment of his condition. In raising awareness of this incident, protocol amendments were made ensuring that all children under two should be taken to hospital for proper hospital based assessment.  In another case, the firm acted for a mother whose twins were stillborn due to a delay in diagnosis of twin to twin transfusion syndrome.  Following this, protocol amendments were made so that now all relevant twin pregnancies are scanned at an earlier date. 

These are just a few examples of the tragic incidents that occur as a result of failings on the NHS and the positive influence that has been achieved in terms of protecting future patients’ safety through lawyers being instructed.  However, the concern of course is that changes have only been adopted at a local level by the Trust concerned and wider lessons have not been learned.

Exploration of the numerous publications and investigations published over the years show a significant amount of rhetoric, but there does not appear to be any significant improvements in standards of care and consistency of approach across the country.  The fact that claims continue to be made (and consequently legal costs continue to be payable by the NHSLA) is a reflection of the failure to learn lessons and the NHSLA should focus upon this rather than trying to direct criticism to the law firms seeking to help those who have been injured.  They are the body who hold the most information about the nature of the claims brought and settled and should be well placed to identify patterns that occur and implement measures to improve patients’ safety.  Instead of diverting attention as to the cost to the NHS in lawyers’ fees, the NHSLA should be looking to how they might properly learn lessons and reduce injuries to those under their care, only then will the cost in terms of legal fees, and more importantly human lives, be reduced.

It was stated in the Organisation with a Memory paper that “Safety is a dynamic not a static situation”. This report was published in 2000, at which time it was estimated that the cost to the NHS was £2 billion a year in additional hospital stays alone, without taking account of human or wider economic costs. In 2009 the NPSA National Reporting and Learning System Quarterly Data Summary records that the figure has now increased to £3 billion. These figures suggest that, sadly, safety is not moving in the right direction.

The concluding point is that, over the last decade, there have been a huge number of well drafted, well motivated and well constructed papers produced by the NHS.  Despite the hours of preparation, the best of intentions and the costs of preparing those papers, we still find ourselves with the rising costs associated with adverse events and the inevitable rise in litigation costs. Why does the organisation have the ability to recognise its flaws, the quality of staff to have some of the world leading health providers and yet, despite all of this, it seems unable to implement a system that establishes a learning loop to bring about a significant improvement in patient safety.

The responsibility rests with everyone, including solicitors, who have an insight into the failings of the health service to attempt to assist in reducing adverse incidents. Reducing the frequency of such incidents which have a devastating impact upon individuals and families has to be the aim for all – Claimants and Defendants alike.

The following are a sample of statistics taken from the publications that have been considered:

Based on information provided by Trusts to the National Patient Safety Agency, there are in excess of 1,000,000 patient safety incidents every year causing harm to patients

According to the NAO, half of all patient safety incidents could have been avoided

 The cost to the NHSLA of clinical negligence claims (including costs) is around £800 million per annum[12]

The direct cost to the NHS of patient safety incidents in terms of bed days is £3 billion per annum

The NHS cost of patient safety incidents in terms of bed days is therefore 5,000 times greater than the total cost of clinical negligence claims arising from such incidents

10% of patients leave hospital with some harm[13]

The cost to the NHSLA of clinical negligence claim in 2007/8 = £633million –v- the additional cost in additional bed days = £3 billion

Ian Christian

Lindsay Gibb

Sarah Rowland

(March 2010)