Clinical Negligence Litigation Research Articles

Clinical negligence litigation and the NHS: focusing on the injured patient

John Tingle, Lecturer in Law, Birmingham Law School, University of Birmingham, discusses some recent reports on clinical negligence that focus on the importance of patient safety.

Balancing the books or balancing the scales: what should drive reforms?

John Tingle, Lecturer in Law, Birmingham Law School, University of Birmingham, considers the two opposing viewpoints on the need for change in the clinical negligence litigation system.

Clinical negligence litigation reform: the link between safety and the law.

John Tingle, Lecturer in Law, Birmingham Law School, University of Birmingham, discusses some recent reports on patient safety and clinical negligence.

Medical accidents: A Socratic resolution?

Whilst medical accidents and adverse events clearly have to be the subject of response and redress for individuals who have suffered injury, the current approach to such accidents and events has developed in a piecemeal way. We argue that the various processes involved in such response and redress are outmoded and there is a lack of a clear overview, in particular in terms of promoting better clinical management and less psychological impact on the victim. The current effect of clinical negligence litigation produces adverse outcomes in terms of a patient's safety and the psychological wellbeing of victims. The time has come for an overall approach to be considered, which we suggest should be holistic and which would result in positive outcomes for the NHS and its patients.

Clinical negligence litigation: balancing the interests

John Tingle, Reader in Health Law at Nottingham Trent University, discusses a recent report by the Medical Protection Society on the need to control the costs of clinical negligence litigation.

The high cost of clinical negligence litigation in the NHS.

John Tingle, Reader in Health Law at Nottingham Trent University, discusses a consultation document from the Department of Health on introducing fixed recoverable costs in lower-value clinical negligence claims.

Managing clinical negligence litigation and costs in the NHS.

John Tingle, Reader in Health Law, Nottingham Trent University, discusses recent Government proposals to improve NHS maternity services and make changes to litigation and patient safety investigation procedures.

New expert witness guidance? Kennedy v Cordia 2016

Expert evidence forms the basis of almost every claim that comes before the courts in personal injury and clinical negligence litigation. The experts instructed will be of fundamental importance to the success or failure of the case. The legal profession are increasingly aware of the responsibility when instructing an expert to ensure that the expert is aware of their duty to the court. Following the case of Jones v Kaney (2011),1 it is important that experts know that their evidence no longer carries immunity from an action in contract or negligence if it is found to be wanting. In light of this, it is worth reading the judgement in the Kennedy v Cordia case.2 Who would have thought that a bruised wrist from a fall on an icy footpath in 20103 would lead to the Supreme Court giving useful guidance on when expert evidence would be allowed in a civil court? The claimant (Ms Kennedy) was employed as a home carer by the defendant. Her work involved visiting clients in their homes and providing personal care. One wintry December evening, she was required to visit an elderly lady. She slipped and fell, injuring her wrist. She sued the company, and called Lenford Greasly as part of her case, a consulting engineer and former factory inspector. Mr Greasley opined that as part of the risk assessment for her role Ms Kennedy should have been provided with some form of anti-slip overshoe which, if worn, would probably have prevented her injury. The defendant objected to his evidence on the basis that he did not have any special skill, learning or experience. This objection was rejected initially by the court. At first appeal (motivated partly by concerns about the unnecessary proliferation of experts in civil cases which is seen to …

Medico-legal risk, clinical negligence and the practice of travel medicine.

Traditionally a small number of clinical specialties, such as obstetrics and gynaecology, have been regarded as particularly high-risk areas of medical practice in terms of medical negligence litigation. Increasing evidence is emerging to substantiate the view that clinical negligence litigation is becoming prevalent in primary and ambulatory care settings.1–3 In common with other specialist areas of clinical practice, travel medicine presents medico-legal risks. The potential for unrecognised medico-legal risk and a lack of risk management practices in travel medicine merit consideration. In order for an allegation of negligence to be proven, four principle facts must be individually established.4 In the first instance, the travel health professional must have a duty of care to the patient. Second, that professional must have failed to reach an accepted standard of practice in the course of providing that care. Third, the patient must have suffered physical, financial, psychological and/or another form of loss. Finally, the loss must have been legally caused by the failure to provide an accepted standard of care. The onus is upon the plaintiff (i.e. the patient) to prove that negligence has occurred, and unless evidence of all four aspects is accepted by the court, the allegation of negligence will not be upheld. Travel health professionals owe a duty of care to any patient who consults them. Within that duty of care, there is an obligation to provide a standard of care that must be approved by a reputable body of opinion within the specialist area of practice. In this way, variation in clinical practice and differences in opinion between practitioners are taken into account. If there is a reasonable body of opinion to support the course of action taken, then the professional will likely be considered to have provided an appropriate standard of care. Duty of care begins …

Clinical negligence litigation – Is there a better way?

Clinical negligence litigation – Is there a better way?

An exploration of the effects of clinical negligence litigation on the practice of midwives in England: A phenomenological study

Objectiveto explore how midwives׳ personal involvement in clinical negligence litigation affects their midwifery practice. Designdescriptive phenomenological study using semi-structured interviews. Settingin 2006–2007 in-depth interviews were conducted in participants׳ homes or at their place of work and focused on participants׳ experience of litigation. Participants were recruited from various regions of England. Participants22 National Health Service (NHS) midwives who had been alleged negligent. Findingsclinical practice affected was an increase in documentation, fear of practising outside clinical guidelines and electronic fetal monitoring of women at low obstetric risk; these changes were not widespread. Changes in practice were sometimes perceived negatively and sometimes positively. Forming a good relationship with childbearing women was judged to promote effective midwifery care but litigation had affected the ability of a minority of midwives to advocate for women if this relationship had not been established. Litigation could result in loss of confidence leading to self-doubt, isolation, increased readiness to seek medical assistance and avoidance of working in the labour ward, perceived as an area with a high risk of litigation. A blame culture in the NHS was perceived by several midwives. In contrast an open non-punitive culture resulted in midwives readily reporting mistakes to risk managers. Litigation lowered midwifery morale and damaged professional reputations, particularly when reported in the newspapers. Some midwives expressed thoughts of leaving midwifery or taking time off work because of litigation but only one was actively seeking other employment, another took sick leave and one had left midwifery and returned to nursing. Key conclusionslitigation can have a negative effect on midwives׳ clinical practice and morale and fosters a culture of blame within the NHS. Implications for practiceeducation regarding appropriate documentation, use or non-use of electronic fetal monitoring and the legal status of clinical guidelines will enable midwives to respond proportionately to the threat of litigation. A culture of openness and sharing the problem when adverse events occur would help to extinguish the current blame culture in the National Health Service. Litigation must be recognised by management as capable of inducing loss of confidence and reluctance to work in the labour ward. Promoting teamwork will help support these midwives. The potential for litigation in maternity care could affect retention of the midwifery workforce.

The role of the NHS Litigation Authority in England.

John Tingle discusses the latest annual report and accounts from the NHIS Litigation Authority, which shows how it has dealt with cases brought against the NHS for clinical negligence and other legal matters. The context of clinical-negligence litigation is explored in this report, along with other themes and challenges for NHS organisations.

Secondary neurological deterioration in traumatic spinal injury: data from medicolegal cases.

We assessed the frequency and causes of neurological deterioration in 59 patients with spinal cord injury on whom reports were prepared for clinical negligence litigation. In those who deteriorated neurologically we assessed the causes of the change in neurology and whether that neurological deterioration was potentially preventable. In all 27 patients (46%) changed neurologically, 20 patients (74% of those who deteriorated) had no primary neurological deficit. Of those who deteriorated, 13 (48%) became Frankel A. Neurological deterioration occurred in 23 of 38 patients (61%) with unstable fractures and/or dislocations; all 23 patients probably deteriorated either because of failures to immobilise the spine or because of inappropriate removal of spinal immobilisation. Of the 27 patients who altered neurologically, neurological deterioration was, probably, avoidable in 25 (excess movement in 23 patients with unstable injuries, failure to evacuate an epidural haematoma in one patient and over-distraction following manipulation of the cervical spine in one patient). If existing guidelines and standards for the management of actual or potential spinal cord injury had been followed, neurological deterioration would have been prevented in 25 of the 27 patients (93%) who experienced a deterioration in their neurological status.

Why do parents litigate and what does it do for the family?

It is reported that the annual cost to the National Health Service from litigation rose from £456 million in 2008 to more than £1 billion in 2012. The greatest single...

The medical innovation bill: Will parliament sleepwalk into danger for patients and access to justice?

Lord Saatchi’s Medical Innovation Bill (also known as the ‘Saatchi Bill’) had its second reading in the House of Lords on 27 June and at the time of writing is about to start the committee stage. It purports to encourage innovative medical treatment by removing the fear of litigation. In my view, the Bill is both unnecessary and poses a grave threat to both patient safety and access to justice. The level of debate so far has been disappointing, but once peers appreciate the seriousness of what is being proposed and its (hopefully) unintended consequences, I am hopeful that it will receive proper scrutiny. The Bill is based on what most serious commentators seem to agree is a completely false premise – that innovative and potentially life-saving treatment is being denied to patients because of doctors’ fear of clinical negligence litigation. Lord Saatchi has failed to provide any evidence to back his assertion that this is the case, whereas those who are in the best position to know, including the likes of the NHS Litigation Authority, the Medical Defence Union, and the British Medical Association, all confirm that there is no evidence of such a problem. If treatment is refused, it is likely that this is either because the NHS will not fund the treatment, or simply because the doctor does not think it is the right treatment or safe. However, the Bill ignores all of that and would sweep away current definitions of negligence. It would allow an individual doctor to carry out any treatment provided that the patient consents to it, even if this flies in the face of all the evidence and advice from experts. The Bill has been presented by Lord Saatchi and his considerable publicity machine as if it is all about providing a last chance for cancer patients who have exhausted all evidence-based treatment options. However, that is not the case. As was confirmed in the debate in the Lords, as currently worded the changes would apply to any kind of medical treatment, including cosmetic treatment. All the doctor would need to do to be in the clear is persuade the patient and to ‘consult’ others (not to get approval from anyone). This has serious patient safety implications. Anyone who is familiar with the case of Dr Ian Paterson who damaged scores of women in the Midlands whom he persuaded to agree to his own variation of breast surgery can see how getting consent from patients is not a sufficient safeguard on its own. The strongest voice of reason in the Lords debate came from cross-bench peer Baroness Masham, who is a longstanding advocate of patients’ rights. As well as the threat to patient safety, she pointed out that the Bill would leave patients who have been harmed by negligent treatment (as we would define it now) without any redress. This is something which supporters of the Bill and many of the peers who took part in the debate do not even seem to have recognised as something worth worrying about. She challenged Lord Saatchi for evidence to support his claim that innovative treatment is being denied because of fear of litigation – but with no response. Lord Saatchi made it clear that he expects the Bill to sail through the Lords and to become law before the next election (in 2015). Those who value patient safety and justice must hope that it does not, and that the Bill receives the scrutiny that such an important topic deserves. Basing legislation on an emotional response to the death of loved ones and pure anecdote is not a good idea. Parliament must not sleepwalk into this dangerous and unnecessary legislation.

The future for Medico-Legal disputes – a patient perspective

This article, taken from a presentation to the Medico-Legal Society, discusses the prospects for patient safety and access to justice in the wake of the Mid Staffordshire NHS Foundation Trust public inquiry and the Legal Aid Sentencing and Punishment of Offenders Act. Particular reference is made to the arguments for and against a statutory Duty of Candour; clinical negligence litigation; patient complaints and specialist advice and support for people affected by medical accidents.

A phenomenological study of the effects of clinical negligence litigation on midwives in England: The personal perspective

Objectiveto explore how midwives' personal involvement in clinical negligence litigation affects their emotional and psychological well-being. Designdescriptive phenomenological study using semi-structured interviews. Settingin-depth interviews were conducted in participants' homes or at their place of work and focused on participants' experience of litigation. Participants were recruited from various regions of England. Participants22 National Health Service (NHS) midwives who had been alleged negligent. Findingsunfamiliarity with the legal process when writing statements, attending case conferences and being a witness in court provoked significant stress for midwives. This was exacerbated by the prolonged nature of maternity claims. Support ranged from good to inadequate. Participants who no longer worked for the defendant Trust felt unsupported. Stress could manifest as physical and mental ill-health. Some midwives internalised the allegations of negligence believing their whole career had become worthless. Previous knowledge of the legal process ameliorated the experience. Midwives also exhibited anger and resentment when litigation concluded and some took years to heal from the experience. Key conclusionsmidwives come from a caring and relational paradigm. When interfacing with the adversarial and contentious paradigm of tort law, midwives can abreact and suffer emotional, physical and psychological harm. Support for midwives experiencing litigation must be improved. Implications for practice: Understanding the effects of personal involvement in litigation is important in order to improve the quality of support for this group of midwives. It will also aid development of targeted education for undergraduate, post-graduate and in-service midwives. In the longer term it may help policy makers when considering reform of clinical negligence litigation and NHS employers to structure support mechanisms for staff involved.

Res Ipsa Loquitur & Medical Negligence: A Comparative Survey

In this book, van den Heever and Carstens describe a comparative study of the attitude to the maxim res ipsa loquitur in three jurisdictions; South Africa, England, and the United States. The book comprises an Introduction, three descriptive chapters on the application of the maxim to medical negligence cases in the three legal systems, and then an analysis of their differences. The final chapter proposes a continuing role for the use of the maxim in clinical negligence litigation in South Africa. The authors commence the description of their study with certain conviction of what the result of their forthcoming analysis will reveal. The introductory chapter, at ‘1.2, Purpose’ speaks for itself; ‘the aim and object of this book is to establish conclusively that the approach of the South African courts that the doctrine of res ipsa loquitur can never find application to medical cases is untenable and out of touch with modern approaches adopted by other common law countries’ (p. 4). This prophesy fulfils itself in the final chapter, pointedly entitled ‘De lege ferenda recommendations for the application of the doctrine of res ipsa loquitur to medical negligence and related medical malpractice issues in South Africa’. Although a hypothesis usually contains a rhetorical question, the early phases of the ensuing investigation of a subject generally leave open the possibility that the hypothesis will be proved to be incorrect. The authors' early assertion that the courts in South Africa have adopted an untenable stance with respect to the maxim is therefore disconcerting. Following this early declaration, the reader may be unsettled by the thought that the authors' subsequent analyses could be influenced by their unshakeable belief in the value of the maxim. On the other hand, forewarned, the reader may just accept that she simply has to make up her own mind, since the facts are clearly laid out for all to see. But at least the reader is in no doubt of the authors' position on the matter as they proceed to describe the application of res ipsa loquitur in the three jurisdictions.

Retained vaginal swabs: review of an adverse event in obstetrics through closed claims analysis

Background: An integrated approach to clinical risk management and litigation claims management in the health service is essential to drive and support safe patient care. This approach identifies adverse events and enables learning from those events. Objective: To explore the issue of retained vaginal swabs in the maternity services and to identify common themes and areas for improvement. Methods: Closed claims analysis using retrospective review of legal case records held by the State Claims Agency in Ireland for the period 2004–2011. Subjects: Litigation cases handled by the State Claims Agency regarding alleged vaginal retention of a surgical swab following childbirth. Results: Review of the 16 closed cases revealed 3 major areas of concern; staff clinical performance, workload issues and documentation. Conclusion: Cases of retained vaginal swabs were few in number. However, they represent a significant problem in that they are very difficult to defend in clinical negligence litigation, as they reflect the failure of clinicians to comply with practice standards around a clinical procedure. Maternity service providers must put measures in place to manage this preventable clinical risk.

Challenges in patient safety and health quality

John Tingle discusses two recently published reports that raise important issues in NHS patient safety, clinical negligence litigation and health quality.