Where are we with Clinical Negligence in 2017?

26 October 2017

If you believe the National Audit Office, the NHSR and the GP indemnity providers, the only thing broken with the NHS is lawyers who are bringing clinical negligence claims. This offends those in society who have the misfortune to be injured in a medical setting.

There are some points that have to be made greatly in favour of the NHS. It is a very safe system. It is safer than many medical systems in the modern world, for instance you are far more likely to be injured or neglected in the USA medical system than you are in England and Wales. The NHS does its very best and very rarely could it ever be said that a person would ever want to be negligent in the treatment that he or she provides. However that does not mean that it cannot be improved. Recently the NHS failed to be mentioned in the top 15 health systems in the world.

The NHS is grossly understaffed in respect of clinical staffing and that is the root of many of its problems. There is a vast shortage of nurses, midwives and radiographers coming through and doctor’s posts are routinely under filled. There is significant fund wastage due to over-reliance on Agency staff, due to lack of forward planning, who charge hourly rates far in excess of employed staff. With Brexit on the horizon it is likely that things will only get worse as the mantra of home grown talent is not something that can appear overnight. Is the NHS really going to have to turn away skilled doctors, nurses, midwives and radiographers, just because they are not UK born or resident? Should available Commonwealth and EU trained medical practitioners be prevented from improving safety just because of Brexit? It is already reported that the proportion of EU staff joining the NHS has fallen from 15,247 in 2014/15 to 6,925 this year. For the short term at least this will only have the effect of a reduction in patient safety as staff are asked to take on more hours and overtime and work when increasingly stretched to breaking point.

The NHS is also a bureaucratic tardis. There are more administrators employed than there are clinical staff. Often those bureaucrats are not able to even step up and provide clinical support when staffing is short. A reduction of bureaucracy in favour of employment of clinical staff and investment in the clinical staff that the NHS already has is essential.

Recent figures confirm that the most concerning area is birth injury. There are simply too many birth injuries occurring in England and Wales that are avoidable. A mantra of ‘if in doubt, get it out’ is very rarely applied to pregnancy, rather the different disciplines have their own ideas about how a birth should proceed. There is too great an emphasis on ‘natural birth’ when the key consideration should be a safe birth for mother and baby. As for standalone birthing units not many medics would even agree to give birth in them.

Birth injuries also by definition cause the greatest future reliance upon resources and cost the most to compensate when something has gone wrong. The NHSR acknowledge this “…One area of focus is maternity claims. In addition to the devastating effect on families, they represent one of the significant drivers of cost. Despite obstetric claims representing only 10% of clinical claims by number in 2016/17, they accounted for 50% of the total value of new claims reported.”

The aim must be patient safety and staffing and funding is one of the solutions. However there has also sometimes been a tendency not to learn from past mistakes and to blunder on repeating the same mistakes time and time again.

The grossly under resourced NHS is likely to be in difficulty again if we have a bad winter. Perhaps they were lucky last year that the winter was quite warm and not too effacing. Luck should not be part of patient safety considerations.

While patient safety should be central to any developments in the NHS this was not reflected in a recent report from Centre for Policy Studies which concluded that radical reform is needed to stem the growing cost of clinical negligence claims against the NHS.

The report’s author, Dr Paul Goldsmith, a consultant neurologist and policy strategist, has put forward nine recommendations to bring down costs for the NHS including: repealing Section 2(4) of the Law Reform (Personal Injuries) 1948 Act, paying a financial awards directly from the negligent party to the responsible body purchasing future care, and fixing loss of earnings at the national living wage or a low multiple of salary.

This prompted a quite heated debate on twitter with Dr Goldsmith. Not to be too simplistic but his report missed the point and essentially blames the patients for being injured.

We are in a period of political flux that is impacting upon the provision of medical treatment. Lessons need to be learned to improve patient safety. However it seems that a general willingness exists to simply let the NHS soldier on without adequate investment and cause unnecessary harm due to being under resourced and bureaucratically antiquated. It is far easier for politicians to dismiss the concerns, blame the patients for being injured and bat on about Brexit benefits.

Every patient who is unnecessarily harmed is let down by the system, which in itself is grossly under resourced. Mistakes occur, but when due to resourcing this should not be happening.

The Medical and Serious Injury Team at Curtis Law is led by Jerard Knott, Senior Associate Solicitor, an APIL Accredited Clinical Negligence Specialist. We are committed to promoting Patient Safety. The team only acts for Claimants and is dedicated to providing a client care centered high level of service, providing the best possible advice and maximising damages. The department acts on a large number of fatal (including representation at Inquests) and high value cases. The department regularly advises on cases with valuation exceeding £1,000,000. We can be contacted on 01254 297130 or MedNeg@curtislaw.co.uk.

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