Professor Vivienne Harpwood 2017 Errors in healthcare Professor Vivienne Harpwood 2017

CONTENTS Data on errors in healthcare in England and Wales Common types of error in healthcare in UK Data on claims clinical negligence claims Data on damages for clinical negligence Spending on defending claims

Political Perceptions “The best place for a lawyer is on the operation table”…… “Lawyers are milking the NHS of millions of pounds every year – money that would be better spent on patient care” Frank Dobson Health Secretary BBC Newsnight Interview

Data on errors Organisations collecting data Audit office NHS Commissioning Board Clinical Negligence Scheme for Trusts NHS Litigation Authority Welsh Risk Pool and Welsh Health Legal Services Ombudsman Monitor and Healthcare Inspectorate Wales

Recent web stories NHSLA figures e.g. BBC News 29th September 2016 Case law

Clinical Negligence Claims 1996-2015

Clinical Negligence Claims 1996-2015 Figures do not reflect the year of incidence of the event from which the claims arise. 80% of claims arising in any one year relate to incidents that occurred sometime within the preceding three years (within the limit by statute for personal injury). 20% relate to earlier incidents due to later realization of harm or to judicial discretion.

PUTTING THINGS RIGHT Wales has its own system for dealing with low value claims (under £25,000) Opportunity to address concerns at an early stage and offer redress where appropriate Estimated saving of £5.75m in claimants’ costs over the past 3 years

Wales By the end of December 2016 there were 2,630 clinical negligence claims compared with 2,576 claims at the same stage last year and compared with 2607 claims at the end of 2015/2016. The number of new matters received in year to December was 716, compared with 768 to the same period in 2015/2016.

Male doctors more likely to face legal action than females Findings, published after researchers identified and reviewed results from 32 studies concerning medico-legal action over 15 years. Men are 2 and a half times more likely to be sued "More research is needed to understand the reasons for why male doctors are more likely to experience a medico-legal action," Emily Unwin, of University College London (UCL) in the UK.

EARLY ADVERSE EVENTS DATA (Patient Safety Incidents) Audit Commission Report 2000 1 in 14 patients suffers an adverse event A 36% increase over the past year BMJ Article March 3rd 2001 10.8% of patients suffer an adverse event 50% of these are preventable (Confirmed by Audit Commission 2005)

PATIENT SAFETY INCIDENTS In a sample of the public – Nearly 5% reported illness, injury or impairment they believed caused by medical care 30% of this group claimed event had permanent impact on health 55% said event happened in NHS hospitals 25% said event happened in primary care (MORI 2002)

ERRORS IN HOSPITALS 10% of inpatient episodes led to harmful adverse events 50% of these were preventable Direct cost to NHS of additional days in hospital - £250,000 for 1011 admissions Broad extrapolation to NHS in England based on 8.5 million annual admissions – 850,000 admissions lead to adverse events at a cost of £2 billion in additional beds alone (Organisation with a Memory 2000, replicated on a regular basis)

Types of error Misdiagnosis Failure to monitor the claimant's condition Failure to undertake appropriate tests Failure to treat a patient in a timely fashion Failure by GP to refer the patient to a consultant .

Types of error Failure to supervise nurses or junior doctors Failure to have in place efficient systems for treating patients Failure to notice changes in a patient's condition Failure to inform in the consent process

Types of error Delay in diagnosis Discharging a patient too early Providing the wrong medication or the wrong dose of medication Failing to recognise an allergy to certain medication Disclosing data without consent

Types of error Failure to recognise the correct level of observation required when a patient is treated in the community Confusing the identity of two patients and giving each the treatment that was intended for the other Claims may involve the supply of medication or medical products that are defective, in which case the need to prove fault (breach of duty) may be dispensed with by the operation of the Consumer Protection Act 1987 Wrong site surgery

GMC consultation 2014 Imposing sanctions where doctors make serious clinical errors, even where they have successfully retrained and improved their practice, if they failed to heed concerns and take steps to protect patients sooner. Whether panels should require a doctor to apologise where he or she has previously failed to do so. Imposing more serious action in cases where doctors fail to raise concerns about a colleague’s fitness to practise or take prompt action where a patient’s basic care needs are not being met. Improved public protection in cases where a doctor has bullied colleagues and put patients at risk or discriminated against others in their professional or personal life.

WRONG SITE SURGERY 50% rise between 2003 and 2006 in number of claims involving wrong site surgery in England Cost of settlements, including damages and costs: £447,694 in 2003-4 £663,145 in 2004-5 £1,098,975 in 2005-6

Sir Liam Donaldson’s Annual Report In 2007 One patient a day was listed for wrong operation 1,136 errors involving operating lists 14 brain surgery patients were given surgery on the wrong side

REALITY 2005 NAO ESTIMATES Retrospective studies of patients records Surveys of NHS Trusts in England significant under-reporting of deaths as a result of “patient safety” incidents. Between 840 and 34,000 estimated deaths But Report acknowledges that “we simply do not know”.

2006-7 NPSA figures Over 700,000 NHS "patient safety incidents" were reported Around 6,500 resulted in severe harm. Almost 3,000 people died

NPSA 2007 Surgical Incidents 129,419 surgical incidents were reported to the NPSA more than 1,000 resulted in severe harm 271 led to the death of the patient.

NPSA Analysis of 96% of acute, ambulance and mental health trusts 2003-4: 885,832 recorded patient safety incidents and near misses 2004-5: 974,000 reported events Probably more because few trusts included hospital acquired infections in statistics.

Care Quality Commission The NHS Staff Survey (which excluded GPs who are independent contractors) in England, conducted by the Healthcare Commission in 2005, recorded that the number of staff in the survey who said they had witnessed at least one error, near miss or incident in the previous month, had dropped from 44% in 2004 to 40% in 2005.

RELATIONSHIP BETWEEN ERRORS AND CLAIMS It is impossible to assess with accuracy the relationship between errors and claims Not every error is a suitable basis for a claim Many potential claimants are not interested in claiming Errors can be hidden Some patients complain but do not sue

CLAIMS IN ENGLAND AND WALES Before 1960 – claims v NHS extremely rare 1990 – NHS claims cost £65.5 million 2005/6 - claims cost £560 million 2009 - NHSLA estimated £8.2 billion claims outstanding in England 2011- Estimate of around £16 billion outstanding claims in England In Wales claims have almost doubled between 2008 and 2011

Rising volume of claims by year to early years of 21st century 2002-3 5,614 2003-4 4,168 2004-5 4,316 2005-6 5,427

Top 10 settled CNST Claims 2006 Failure to diagnose pre-eclampsia £12,400,000 Failure to perform tests £8,300,000 Failure to monitor second stage labour £6,635,000 Delay in diagnosis £6,248,845 Delay responding to fetal heart rate changes £5,800,000 Failure to respond to birth complications £5,793,782 £5,749,111 Informed consent not correctly obtained £5,624,976 Delay in diagnosis of fetal distress £5,620,290 Delay responding to fetal heart rate £5,555,000

Total value of reported CNST claims by specialty at 31/03/06 (Since the scheme began in April 1995, excluding “below excess” claims handled by trusts)

2007-8 Wales Audit Office Obstetrics claims accounted for 66% of the value of all clinical negligence claims in Wales in 2007-8 By 2011 surgery had overtaken obstetrics for highest number of claims

General Practice Over 95% of all NHS clinical contacts are made in general practice Around 80% are managed in primary care Over 300 million GP consultations take place annually in the UK

CLAIMS AGAINST GPs IN EARLY 2000s Relatively low numbers – between 400 and 500 a year Rising number of claims to date Rising levels of payments

LARGE PAYOUTS INVOLVING GPs £2.9 million diabetic mother giving birth to brain damaged baby 2 awards of £2.3 million for failure to diagnose meningitis

Doctors’ Perceptions Poll of more than 2,000 doctors in 2001 revealed that more than two thirds were practising defensive medicine. “There is no doubt that this climate is having an impact both in terms of clinical practice and morale”. Dr Frances Szekely, MDU

NHSLA Report October 2008 Rise in the number of no win, no fee claims Solicitors are now charging £600 an hour (twice the previous rate). Patient's solicitors fees cost the NHS in England £90 million a year - an increase of 122 per cent on four years ago Solicitors argue that they have a higher mark up because they risk having no fee at all, and that cases are becoming more complex. NHSLA says “the truth of the situation is that they cherry-pick the cases they are most likely to win."

By October 2009 In 2007/08, the NHSLA (in England) made total payments of £661.04 million for all 5 of its schemes. There were 5,470 claims (including potential claims) under its clinical negligence schemes. CNST claims are concluded in an average of 1.50 years, counting the date of notification to the date when compensation is agreed or the claim is abandoned. Between the 01/04/1997 and 31/03/2008, 41% cases were abandoned by the claimant, 42% were settled out of court, 4% were settled in court and 13% were still outstanding.

NHS Litigation Authority 2009 Solicitors charged £152m to obtain £807m compensation during the year 2008/09.

Negligence debt of NHSLA 2012 In relation to the hospital sector, money set aside for settling NHS claims has risen by 12% from £15 billion to £16.8 billion. The increase in claims in that sector is mirrored by the experience of the MPS, where claims have risen by 50% since 2008.

Obstetrics mistakes cost the NHS £235 million in 2012 £235.4 million has been set aside by the NHS Litigation Authority for cases said to have resulted in infants suffering brain damage or a serious arm injury called Erb's palsy. In two of the cases the hypoglycaemia - or low sugar levels - was so serious that the babies d died according to documents (Telegraph April 2012)

NHSLA 10,129 claims submitted in the year to March 2013 11,945 claims in the year ending in March 2014  ”A significant number of claims filed in 2013-14 were bought by new claimant solicitor firms entering the clinical negligence market.” 

Costs and damages United Bristol Healthcare Legal fees: £1.65m Damages: £1.09m University College London Hospitals Legal fees: £1.27m Damages: £610,000 Doncaster and Bassetlaw Hospitals Legal fees: £1.2m Damages: £1.16m Salford Royal Legal fees: £1.03m Damages: £521,000 NHSLA 2009

MPS in 2010 “The rise in claimant legal costs continues unabated. It is not unusual for claimant legal costs to grossly exceed compensation payouts. In some lower value cases we have seen claimant legal costs in excess of ten times the value of the compensation award. We believe something must be done to stem the tide of unsustainable legal costs and would like to see the reforms recommended by Lord Justice Jackson taken forward.”

Alarm after £120,000 lawyer bill for £5,000 claim NHS Litigation Authority says a third of £1.1bn paid out last year went to lawyers and that government legal aid reforms have led to rising costs in some cases The cost to the taxpayer is expected to rise to £1.4bn next year, with the NHS conceding that it faced an “increasingly difficult task” in managing the level of pay-outs. “The costs of litigation are placing a burden on NHS finances of a magnitude that was never imagined when the NHS LA was established” Ian Dilks, Chair NHSLA 2015

NHSLA Report 2015 NHS agreed to pay £2,000 to settle a claim. The claimant’s solicitors bill was £53,529.60 – although the final amount paid by the NHS was reduced. The report said that it was “impossible to justify” the increasing number of cases where significantly more money was billed by claimant solicitors for legal costs than was paid in compensation. Costs of smaller claims have risen significantly. Where patients receive damages of up to £100,000, the average claimant’s legal costs are now more than 50% of the total payment.

Government plans to cap costs 2015 Case 1: Lawyer received £175,000 while the patient received just £11,800 in damages. Case 2: Legal bill was more than £80,000 while the patient received £1,000. The legal bill was later reduced to less than £5,000 by the courts after a successful challenge by NHS Litigation Authority. Detailed proposals on capping legal fess are being considered by ministers before a formal consultation

NHSLA Report 2016 NHS trusts in England paid out more than £1.4bn in medical negligence claims in 2015 compared with £583m in 2008 It blamed big rises in claims and legal costs from claimants. Lawyers said the costs would not exist if the NHS had not been negligent and accused it of delaying claims.

OVERVIEW OF REASONS FOR THE INCREASE IN CLAIMS Media interest Medical and scientific advances Patients’ expectations Internet (mis)information High awards NHS Complaints system

continued Solicitors’ and claims farmers advertising Consumerism New doctor/patient relationship AVMA and other pressure groups Freedom of Information Act requests

Compensation culture? Stephen Byers for New Labour 2004 “Money is being taken away from saving lives and educating our children to pay for a compensation system in which the real beneficiaries are the lawyers and accident management companies” Stephen Byers for New Labour 2004

Wales 2008-11 £89 million paid in compensation over the 3 year period £11.8 million awarded to brain damaged baby £15 year old schoolgirl awarded £6.5 for brain damage at birth 70 cases resulted in payments of over £250,000, which included 17 of more than £1 million

Claims “farming” NHS trusts have been ordered to remove ‘no win, no fee’ adverts for personal injury lawyers from the leaflets Adverts subsides the production of consent and information leaflets Some hospitals are paid up to £85,000 per annum (The Times)

The Media Seeking sensationalism as opposed to truth Selling newspapers Attracting viewers Numerous examples of high profile statements indicating that errors are rife and claims are escalating

The role of the media 2005-7: 79% increase in media stories on clinical negligence over previous 4 years 87% increase in stories on medical malpractice over previous 4 years

Typical media report “A girl who was "catastrophically" disabled by medical blunders at a hospital has been awarded more than £13m in damages at the High Court. The eight-year-old, referred to only as "HS" in court, was born in 2006 at Royal Preston Hospital suffering from a streptococcal infection. The court heard medics negligently failed to diagnose or treat her until it was too late, leading to meningitis.” BBC News May 2015

Too much public trust “Journalists have as much power to do harm as any surgeon. The pen, indeed, is mightier than the scalpel” Willis 2004

NHS performance 'kills thousands' The TaxPayers' Alliance compared World Health Organization data for five leading European countries. It found the NHS had 17,157 extra deaths in 2004 compared with the other countries' average when taking into account age and burden of disease. BBC News 18th January 2008

“NHS treatment puts 326,000 in hospital” Times Oct 10th 2009 NHS Information Centre published the following data: Around 1 patient in 50 in hospital is being treated for problems caused by NHS care 95,930 involved drug complications 5,050 involved surgical misadventures Figures do not include minor complications

Sir Liam Donaldson “The evidence from scheduled airlines is that the risk of death is 1 in 10 million. If you go into a hospital in the developed world the risk of death from medical error is 1 in 300”. November 2006

New Doctor-patient relationship? Enhanced choice Patients’ charters (John Major in the 1990s) European Charter of Patients’ Rights NHS Constitution NHS Complaints System Targets Internal market Quality in healthcare Developments by the courts

Department of Health “The NHS Constitution published today, marking 60 years of the NHS, is about safeguarding its core principles and values for the next generation, whilst setting a clear direction for the future. It reaffirms rights to NHS services, free of charge and with equal access for all, and it enshrines patient rights to choice and to NICE- approved drugs recommended by clinicians”. June 2008 – updated 2012

NHS Constitution in England States what can be expected of the NHS by staff, patients and public. Sets purpose, principles and values of the NHS, rights, pledges and responsibilities for staff and patients.  All NHS bodies and private and third-sector providers supplying the NHS in England have a legal obligation to take account of the Constitution in their decisions and actions. The Government has a legal duty to renew the Constitution every 10 years. This legal duty is contained within the The Health Act 2009, which is mainly concerned with quality in healthcare and public health, also sets out the procedure for reviewing and amending the NHS Constitution and handbook

MULTIPLE MALPRACTICE SCANDALS Bristol Ledward – a gynaecologist Neale – a gynaecologist Pathology errors involving inaccurate interpretations of cervical smears Shipman! Recent cases: Rodney Ledward was a gynaecologist. The Ritchie Enquiry dealt with 250 complaints against him. Its report is highly critical, not only of Ledward but also of medical staff and managers. Richard Neale was also a gynaecologist. Several charges of serious professional misconduct were made against him. These include treatment without consent, making false claims about his qualifications and experience as well as incompetence. The most highly publicised cases involving cervical smears are those in Kent, but several other areas have experienced similar problems

New attitudes in courts “Until recently, the courts treated the medical profession with excessive deference, but recently the position has changed. In my opinion it has changed for the better” Lord Woolf 2001 Pearce v United Bristol Healthcare Trust 2001 Chester v Afshar “Medical Paternalism no longer rules” 2004 Lord Bingham

TRUE PICTURE Errors far outnumber claims