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November 21st 2013

Kath Lavery

Why it’s time the NHS started talking to medical negligence lawyers for its own good – as well as that of its patients.

Why it’s time the NHS started talking to medical negligence lawyers for its own good – as well as that of its patients.

By , former Chair of NHS Hull and now chair of Neil Hudgell Solicitors, personal injury and medical negligence specialists.

By , former Chair of NHS Hull and now chair of Neil Hudgell Solicitors, personal injury and medical negligence specialists.

Dealing with the aftermath of what are termed “serious untoward incidents” – the wrong leg amputated, swabs left in patients during operations, tragic mistakes during childbirth – was thankfully a rare but nonetheless disturbing part of my role as Chair of NHS Hull for many years.  We were always informed about what was being done to right the wrong: staffing changes or training, compensation being paid to patients.  It was vital information needed to inform strategic decision making.

However, with hindsight I realise that we were not being given the whole picture.  What never happened was real learning from these awful, catastrophic mistakes from all those involved in the process.  We heard about the health service response but we never heard from the so-called “adversaries” – the medical negligence lawyers acting for the patient.  It’s only since leaving the NHS and taking on a new role with Neil Hudgell Solicitors that I can see that the NHS is missing a great opportunity to learn and to improve.  Accepting that medical negligence lawyers have an essential role and drawing on their expertise could help the NHS to prevent the same mistakes happening again.  What’s more, engaging with medical negligence lawyers could also save this great organisation, cherished by the British people, a lot of money.

A recent National Audit Office report highlighted once more the amount the NHS has to spend settling medical negligence claims: mistakes in maternity care account for nearly a third of the £1 billion spent each year.  Yet, when this type of report is published, there can be a tendency to focus on the headline grabbing figures and forget the individual victims, the people to whom bad things have happened and who deserve professional representation.  As a former Trade Union official, I know that it’s accepted that if an employee is badly treated at work he or she has a right to legal representation if needed to resolve the issue.  Equally, in domestic and matrimonial cases, it’s normal for all parties to engage a lawyer if required to work out a settlement.  Yet there is a perception of medical negligence lawyers as somehow bad and predatory and that people who make claims against the NHS are greedy or undeserving of support.

However in my experience medical negligence claims are not frivolous.  They are lodged only following considerable research and with good evidence to back up the case being made.  The NHS is by and large a wonderful organisation but it does make mistakes and, when these happen, patients have a right to professional representation.  Compensation claims are made not to punish the NHS or its employees but to help its victims to live with the consequences of the blunders they’ve suffered: the need for extra support or care, adaptations to the claimant’s home, loss of earnings, chronic pain that demands physiotherapy or other treatment, psychiatric conditions needing on-going counselling and assistance.

However, from my experience within the NHS, when a claim is made the organisation’s typical response is defensive: to deny, defend and fight the case.  As well creating stress and prolonged uncertainty for a patient who is already suffering, this approach also costs legal time and therefore money.

As an example, Simon Wilson, joint head of negligence at Neil Hudgell Solicitors, highlights the current situation when bile duct injuries are caused during gallbladder surgery.

Simon told me: “It is now pretty well established that injury to the bile duct during gallbladder surgery is negligent. Despite this, local Trusts and the NHSLA often stick to the argument that it is a complication that is consented to prior to surgery. Clearly a patient cannot consent to a negligent act. On many occasions this argument leads to the time and expense of additional reports and the need for Court Proceedings to be issued.  However, I am not aware of a single case of this type that has not settled.”

It would be far more pragmatic, cost-efficient and beneficial if the NHS engaged with medical negligence lawyers.  The aim should be to settle cases through arbitration rather than confrontation and the courts.  What’s more, if the NHS was to start a conversation with patients’ lawyers and use this as an opportunity to learn, vital information could be transferred and put to good use within the organisation.

As Simon Wilson also points out lawyers will often see trends in types of claims. They often arise in batches and against the same team of doctors, nurses or surgeons.

He said: “Lawyers are more likely to be aware of this because part of the risk assessment of cases means that we look back at successful outcomes when deciding whether to proceed. This information could be shared at an early stage ensuring that those teams receive appropriate training. Similarly, if there are certain case types which are usually successful, this information could help the NHS in deciding on which claims to make admissions of liability and which should be properly defended.”

Of course, a change like this to engage positively with medical negligence lawyers would mean a massive shift in culture within the NHS.  But, it’s become clear from the Francis Review into the Healthcare failings at Mid Staffordshire NHS Hospital that a huge change in approach is needed.  In short, if the NHS does something wrong it has to say so, apologise and sort it out. What’s more, surely it has a duty to draw on all expertise available to ensure it doesn’t happen again.

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