MEDICAL NEGLIGENCE & the NHS
Recent statistics published by the NHS (national health service UK) resolution has revealed that the number of medical negligence claims is decreasing year by year. The basic definition of medical negligence is a breach of a duty of care from a health professional that has resulted in harm and loss. Of course, while the vast majority of medical organizations and professionals offer outstanding care, things can sometimes go wrong.
The number of claims made in 2017/2018 was 10,673, compared with 10,686 made in 2016/2017. The number of claims against the NHS has been decreasing over the last four years when they peaked at 11,945 claims in 2013/2014. In a change to previous years, 2017/2018 saw an increase in claims from A&E and casualty areas by 7% which will have resulted in more claims for surgery error compensation. In contrast, the NHS received 1,281 new orthopedic surgery claims, which demonstrate a 26% reduction over the past five years.
This year, the highest number of NHS claims were made about A&E / casualty departments, which includes missed fractures emergency department, surgery error compensation, and stroke misdiagnosis compensation. These types of claims made up 13% of the total medical negligence claims made in 2017/2018. This is closely followed by orthopedic surgery, which makes up 12%, obstetrics that makes up 10%, and general surgery, which is 9% of all NHS claims.
Although obstetrics only makes up 10% of the medical negligence claims made, it accounts for 48% of the total value of NHS claims made. Obstetrics refers to the branch of surgery and medicine concerned with childbirth and midwifery and includes NHS claims including stillbirth medical negligence and birth trauma claims. The number of maternity blunders made by the NHS in recent years has been linked with a failure to monitor babies’ heart rates.
In 2017/2018 damages paid out to patients who have suffered medical injury and negligence increased from £1,083 million in 2016/2017 to £1,632 million. This increase reflects a growing number of payments made for NHS claims originating from previous years. The NHS negligence bill for mistakes made before 1995 has begun to rise for the first time in five years. A large number of these legacy claims include cerebral palsy compensation and other maternity errors that had life-changing results for patients.
In addition to the damages paid to patients from medical negligence claims, the NHS also paid £466.6 million in claimant legal costs in 2017/2018, which is a decrease of 6.4% in the previous year. The total payments made by the NHS in respect of clinical schemes amounts to £2,227.5 million in the last year, which has increased by over 30% on the year prior.
The vast majority of NHS claims that are received are settled out of court, with NHS resolution reporting that 69.6% of all claims against NHS in 2017/2018 were resolved without formal court proceedings.
Less than a third of claims ended up in litigation, and fewer than 1% of medical negligence claims went to a full trial. Most cases that do result in full court proceedings end in judgment favor of the NHS. However, this is not always the case. NHS resolution manages all claims that are resolved without the need for formal court proceedings by their own in-house teams, and negotiation between parties resolved the majority of these medical negligence claims. Some NHS claims result in the form of alternative dispute resolution, including formal mediation.
In order to determine medical negligence, a three-stage test should be satisfied. There must be an established fault by a medical professional such as a doctor, surgeon or dentist. The claimant must decide on probabilities that medical negligence has occurred by the hospital or GP surgery.
Medical compensation is paid with the view that it will return the claimant to the position they would have been in had the medical injury or negligence not occurred, this includes costs such as loss of earnings. To determine if medical negligence has taken place, you need to consider:
When a patient is admitted to hospital or visits a GP or other medical professional, a duty of care relationship is created. This applies to every medical professional that they may come into contact with while in hospital, not just the admitting team, this includes anesthetists, nurses and other medical assistants. In order to make a claim against the NHS, you must establish that a duty of care was in place.
When a doctor’s practice has failed to meet an appropriate standard of care, then a breach of duty has occurred. A breach of duty may result in a medical injury that occurred because the medical professional has made an error and not kept up their duty of care.
Errors of judgment are not automatically considered a breach of duty, but if a doctor has not acted with a level of care that would be expected of them, then it can be considered a breach. To have a valid NHS claim, you must be able to establish that there was a breach of duty from a medical professional.
For a medical negligence claim, you must be able to demonstrate that had the medical professionals’ action/inaction was the cause of your medical injury. This can be difficult when the harm occurred in relation to an episode of medical care. The majority of medical negligence claims fail due to an inability to establish sufficient causation.
While only a tiny proportion of individuals treated by the NHS result in a medical injury of malpractice, there are still around 500,000 patients harmed and 3,000 that died as a direct result of safety failings in the NHS. Roughly three million people a week use NHS services, around 0.4% of those ended up with incidents of harm and 0.003% resulted in a person’s death. That works out as a shocking eight patients dying a death as a result of medical negligence.
If you have been affected by medical negligence, then it is your right to seek answers and discover whether you may have a claim.
To prove that medical malpractice occurred, you must be able to show all of these things:
A doctor-patient relationship existed. You must show that you had a physician-patient relationship with the doctor you are using — this means you hired the doctor and the doctor agreed to be hired. For example, you can’t sue a doctor you overheard giving advice at a cocktail party. If a doctor began seeing you and treating you, it is easy to prove a physician-patient relationship existed. Questions of whether or not the relationship exists most frequently arise where a consulting physician did not treat you directly.
The doctor was negligent. Just because you are unhappy with your treatment or results does not mean the doctor is liable for medical malpractice. The doctor must have been negligent in connection with your diagnosis or treatment. To sue for malpractice, you must be able to show that the doctor caused you to harm in a way that a competent doctor, under the same circumstances, would not have. The doctor’s care is not required to be the best possible, but simply “reasonably skillful and careful.” whether the doctor was reasonably skillful and careful is often at the heart of a medical malpractice claim. Almost all states require that the patient present a medical expert to discuss the appropriate medical standard of care and show how the defendant deviated from that standard.
The doctor’s negligence caused the injury. Because many malpractice cases involve patients that were already sick or injured, there is often a question of whether what the doctor did, negligent or not, actually caused the harm. For example, if a patient dies after treatment for lung cancer, and the doctor did do something negligent, it could be hard to prove that the doctor’s negligence caused the death rather than cancer. The patient must show that it is “more likely than not” that the doctor’s incompetence directly caused the injury. Usually, the patient must have a medical expert testify that the doctor’s negligence caused the injury.
The injury led to specific damages. Even if it is clear that the doctor performed below the expected standards in his or her field, the patient can’t sue for malpractice if the patient didn’t suffer any harm. Here are examples of the types of harm patients can sue for:
• physical pain
• mental anguish
• additional medical bills, and
• lost work and lost earning capacity.
A wide variety of situations can lead to a medical malpractice claim — from a doctor leaving a sponge in a patient’s stomach during an operation to failing to tell a patient that a prescribed drug might cause heart failure. Most medical malpractice claims fall into one of these categories:
Failure to diagnose. If a competent doctor would have discovered the patient’s illness or made a different diagnosis, which in turn would have led to a better outcome than the one actually achieved, then the patient may have a viable medical malpractice claim.
Improper treatment. If a doctor treats the patient in a way that no other competent doctor would, the patient could have a medical malpractice claim. In a similar vein, it may also be malpractice if the doctor selects the appropriate treatment but administers it incompetently.
Failure to warn a patient of known risks. Doctors have a duty to warn patients of known risks of a procedure or course of treatment — this is known as the duty of informed consent. If a patient, once properly informed of possible risks, would have elected not to go through with the procedure, the doctor may be liable for medical malpractice if the patient is injured by the procedure.