1. Professor Vivienne Harpwood 2017
Errors in healthcare
Professor Vivienne Harpwood 2017

2. 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

3. 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

4. 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

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

6. Clinical Negligence Claims 1996-2015

7. 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.

8. 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

9. 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.

10. 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.

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

12. 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)

13. 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)

14. 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 .

15. 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

16. 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

17. 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

18. 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.

19. 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

20. 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

21. 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”.

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

23. 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.

24. 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.

25. 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 to 40% in 2005.

26. 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

27. 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
NHSLA estimated £8.2 billion claims outstanding in England
Estimate of around £16 billion outstanding claims in England
In Wales claims have almost doubled between 2008 and 2011

28. 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

29. 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

30. 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)

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

32. 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

33. 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

34. 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

35. Doctors’ Perceptions
Poll of more than 2,000 doctors in 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

36. 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."

37. By October 2009
In 2007/08, the NHSLA (in England) made total payments of £ 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 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.

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

39. 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.

40. 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)

41. 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 were bought by new claimant solicitor firms entering the clinical negligence market.” 

42. 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

43. 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.”

44. 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

45. NHSLA Report 2015
NHS agreed to pay £2,000 to settle a claim. The claimant’s solicitors bill was £53, – 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.

46. 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

47. NHSLA Report 2016
NHS trusts in England paid out more than £1.4bn in medical negligence claims in 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.

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

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

50. 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

51. 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

52. 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)

53. 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

54. 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

55. 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

56. 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

57. 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 compared with the other countries' average when taking into account age and burden of disease.
BBC News 18th January 2008

58. “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

59. 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

60. 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

61. 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

62. 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

63. 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

64. 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

65. TRUE PICTURE
Errors far outnumber claims