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 2007. 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

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 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

REALITY2005 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

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 2009 - NHSLA estimated £8.2 billion claims

outstanding in England 2011- Estimate of around £16 billion

outstanding claims in England Between 2008 and 2011 in Wales - claims have

almost doubled

Outstanding liability March 31st 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 government’s planned future expenses

Equivalent to one seventh of the NHS annual budget

Top 10 settled CNST Claims 2006Failure 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)

871,645

583,232

290,867

103,275 75,337 49,749 48,488 21,697 11,226 8,658 6,881 3,576

1,970,561

0

200,000

400,000

600,000

800,000

1,000,000

1,200,000

1,400,000

1,600,000

1,800,000

2,000,000

Specialty

Val

ue

(£00

0)

2007-8Wales Audit Commission figures Obstetrics claims accounted for 66% of

the value of all clinical negligence claims in Wales in 2007-8

Popple v Birmingham Women’s Hospital NHS Trust October 18th 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 court’s final approval, a £2,105,000 lump sum from Birmingham Women’s 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 2008 41% increase on 2005

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

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: £1.65mDamages: £1.09m

University College London HospitalsLegal fees: £1.27mDamages: £610,000

Doncaster and Bassetlaw HospitalsLegal fees: £1.2mDamages: £1.16m

Salford RoyalLegal fees: £1.03mDamages: £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 2010-11

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

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

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

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