I recently noted a brief but very interesting article on “Reasons why people sue the NHS” in the latest edition of the PI Focus Newsletter from the Association of Personal Injury Lawyers, which I would summarise as follows:

NHS Resolution has recently published research on the factors that lead patients to sue the NHS.

This research apparently found that the response following an incident and the handling of any complaint made at the time featured highly in decisions to claim compensation. It found that:

  • Almost two thirds (63%) of respondents felt they were given no explanation for why an incident occurred
  • Only 31% felt they received an apology, and a minority of those who did rated the apology highly
  • Some 71% did not think their healthcare provider undertook any actions to investigate the incident in the first instance
  • Only 6% of respondents felt that actions were taken that would prevent the same incident happening again

Birth incidents form a large percentage of serious claims. A report by the Royal College of Obstetricians and Gynaecologists’ published last month has highlighted the need for improvement in maternity care. Of nearly 700,000 term babies born in the UK in 2016, 1,123 met the eligibility criteria for the “Each Baby Counts” improvement programme. These included 124 stillbirths, 145 early neonatal deaths, and 854 babies with severe brain injury. Of the 955 babies where the review had enough information to draw conclusions, it found that 674 babies, representing 71%, would have had a different outcome with different care.

The main areas where the “Each Baby Counts” project identified that improvements could have been made were:

  • failure by health professionals to identify or act on relevant risk factors, issues related to monitoring of foetal wellbeing and
  • education or training issues
  • poor team communication

Complaints handling leads to claims. In around three-quarters of cases considered, the incident took place before the introduction of the Statutory Duty of Candour which sets out specific requirements for an open and transparent response when things go wrong with care and treatment. NHS Resolution chief executive Helen Vernon said: ‘This research confirms that claims for compensation can sometimes be made in the search of answers, which could have been provided when the incident occurred. Being open with patients when they suffer avoidable harm and taking tangible steps to learn from what happened are essential.’

However, from my experience, seeing thousands of clinical negligence cases nationally, I would go a little further than the NHSR Chief Executive. I would suggest, being completely open with patients and their families after they have suffered preventable harm from the NHS is not just essential, it should be a legal obligation.

It is only the right first step, after the negligent incident and damage suffered by the patient. It does not prevent claims for negligence, which is the reason why injured patients sue the NHS.

Better still, I would suggest, the NHS should be given the funding, suitably trained staff, equipment and finally the ability to reduce the number of negligent incidents in the first place.

Hector Signature

Disclaimer - all information in this article was correct at time of publishing.