Errors in healthcare Professor Vivienne Harpwood

Political Perceptions The best place for a lawyer is on the operation table

Frank Dobson 1998 Lawyers are milking the NHS of millions of pounds every year – money that would be better spent on patient care

MAKING AMENDS Modern healthcare is delivered in a complex, pressured environment, often involving the care of vulnerable, seriously ill patients. More than any other industry in which risks occur, healthcare is reliant on people, more often than machines, to make the decisions, exercise the judgement and execute the techniques which will determine the outcome for a patient.

The Legal Context If a criminal offence has been committed there is likely to be a prosecution. Unusual in medical context If the patient is injured there may be a claim for compensation (damages). Becoming increasingly common in medical context

CIVIL AND CRIMINAL LAW CIVIL LAW Compensation Day in Court Deterrence CRIMINAL LAW Punishment Retribution Deterrence Reparation

Technical differences CPS makes decision about prosecution Claimant makes decision about claim Different standards of proof affect decisions Procedure is usually adversarial except in Inquests and Public Inquiries Juries only used in criminal cases in Crown court. No juries in clinical negligence claims

The Corporate Manslaughter and Corporate Homicide Act Instead of being contingent on the guilt of one or more individuals, the new offence depends on a finding of gross negligence in the way in which the activities of the organisation are organised and run.

Data on errors Several different organisations collect data Audit commission NPSA Defence organisations CNST and NHSLA Welsh Risk Pool and Legal and Risk Services

ADVERSE EVENTS 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)

Types of error Misdiagnosis Failure to monitor the patient'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 provide the patient with appropriate information

Types of error Delay in diagnosis Discharging a patient too early Providing the wrong medication or the wrong dose of medication Failing to recognise that a patient has an allergy to certain medication

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 Consumer Protection Act 1987 Wrong site surgery

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 £663,145 in £1,098,975 in

Sir Liam Donaldsons 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.

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

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 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 1990 – NHS claims cost £65.5 million 2005/6 - claims cost £560 million NHSLA estimated £8.2 billion claims outstanding in England Estimate of around £16 billion outstanding claims in England Between 2008 and 2011 in Wales - claims have almost doubled

Outstanding liability March 31 st 2010 Claims increased by more than 10% in a year - Whole of Government Accounts (WGA) Report for 2009–10 NHS Litigation Authority had increased by some 31% in 2010/11 or what plans were in place to reduce liabilities for clinical negligence. The report shows that outstanding negligence claims make up 15% of the governments planned future expenses Equivalent to one seventh of the NHS annual budget

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 Delay in diagnosis£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)

Wales Audit Commission figures Obstetrics claims accounted for 66% of the value of all clinical negligence claims in Wales in

Popple v Birmingham Womens Hospital NHS Trust October 18 th 2011 Claimant was white and floppy on delivery. It was ten minutes before he took his first breath. The acute damage to his brain occurred immediately before birth and the judge said midwives on the scene had failed to monitor both the foetal heart and maternal contractions properly, or at all. Judge Oliver-Jones awarded, subject to the courts final approval, a £2,105,000 lump sum from Birmingham Womens NHS Foundation Trust, plus annual index- linked and tax free payments to cover the cost of care. Those payments will start at £148,000-a-year, rising to £173,000-a-year when the claimant is aged 19.

Aneurin Bevan Health Board 2009 – 136 clinical negligence claims 21% increase on % increase on 2005

Wales £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

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."

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

Total value of reported CNST claims by specialty as at 31/03/11 (since the scheme began in April 1995, excluding "below excess" claims handled by trusts)

Negligence debt of NHSLA 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.

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

LARGEST PAYOUTS INVOLVING GPs to 2001 £2.9 million diabetic mother giving birth to brain damaged baby 2 awards of £2.3 million for failure to diagnose meningitis

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.

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

Mistakes by maternity expected to 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)

IS THERE A UK COMPENSATION CULTURE?

Compensation culture? 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

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

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

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 18 th January 2008

NHS treatment puts 326,000 in hospital Times Oct 10 th 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

MULTIPLE MALPRACTICE SCANDALS Bristol Ledward – a gynaecologist Neale – a gynaecologist Pathology errors involving inaccurate interpretations of cervical smears Shipman!

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