The Spinal Injury Association (the “SIA”) polled 136 people with spinal cord injury (“SCI”) to seek their views about litigation. The results show that the current system is too slow but, more importantly, the experience of their lawyer had a significant impact on the person’s compensation. Why are Clients With SCI Unhappy With Their Lawyers? […]
We ended 2016 with another clinical negligence win at Court against the NHS but this comes at a cost to us all. We therefore welcome the decision to review why clinical negligence cases cost so much and how they can be resolved more quickly. This review will be carried out by Parliament’s spending watchdog, the National Audit Office.
This was the stark warning from a report issued today by the Care Quality Commission (CQC). The year long review found that not even one NHS Trust around the country was getting it completely right.
The CQC have urged the NHS to use their findings to ensure that patient’s deaths are properly investigated with families being involved and heard. The CQC looked into this issue after several high profile cases involving the deaths of patients with mental health or special needs. Here are just some recommendations which the CQC set out:
- Families should be engaged with the investigation and their voices heard.
- Families should be informed of their rights and how the death of a family member will be investigated.
- Families should be kept up to date about investigations.
- Clinicians need to record when a patient is vulnerable so that other organisations can be informed of the death to decide if an inquiry is needed.
- Clinicians and staff should have proper training and time to carry out investigations when a patient has died.
- Medical staff continue to be worried about blame attaching to them and this needs to stop so that there is more openness about the events leading up to a patient’s death.
- A national framework is needed to give a consistent approach to investigate patient deaths and how to communicate with the patient’s family.
The report was commented upon by the Chair of the Academy of Medical Royal Colleges who said ” we have consistently failed and continue to fail too many of the families of those who die whilst in our care.
The Director of INQUEST was also quoted as saying there was ” a defensive wall surrounding NHS investigations, an unwillingness to allow meaningful family involvement in the process and a refusal to accept accountability for NHS failings in the care of it’s most vulnerable patients”
Our own experience mirrors these sentiments. We know that many of our clients turn to us to find the answers to questions which should have been resolved by the NHS. The determination to stop future deaths is also at the top of our client’s reasons for seeking legal advice.
We are saddened to read that many families are still not told about the circumstances of the death of a loved one; the statistcs showed that the NHS could demonstrate in only 3 out of 27 reports that they had considered the family’s perspective.
The changes recommended by the CQC have been presented to the Secretary of State for Health to consider. We hope this will be the wake up call needed to ensure the NHS do not continue repeating mistakes which can lead to the avoidable deaths of patients.
If you need advice about the death of a family member please contact our Clinical Negligence or Personal Injury Departments who can talk to you in confidence.
Birth Injury Cases
The DoH have just announced plans to create a “rapid resolution and redress scheme” for maternity claims. It is suggested that claims take on average 11 years and families often face lengthy fights to secure compensation.
We welcome any proposals which help secure quicker admissions of liability and earlier payments for our clients. However, we would be very concerned if this proposal is intended to limit involvement of proper legal advice for the most severely injured clients with cerebral palsy and reduce their entitlement to proper compensation.
In the last 10 years birth injury claims have not reduced in the NHS. This would suggest that lessons are not being learned to prevent children suffering brain damage. Not every child with cerebral palsy has a medical negligence claim but those who do face a lifetime of financial and emotional cost. We continue to see clients with cerebral palsy whose child should have been born without injury.This should be the priority for the NHS.
The NHS quote an average of 11 years for cerebral palsy claims. We think this is inaccurate; many families only contact a lawyer many years after the birth of their child. Once judgement on liability is entered for a client with cerebral palsy or other serious conditions, it is common to wait until the child is older to finalise the claim, when final medical prognosis is possible. Substantial payments are still awarded during the claim so that clients can move to adapted accommodation and get the help they need until the Court can approve a final award. Arguments by the NHS that families struggle financially for 11 years is certainly not our clients’experience.
Small Claims Limit
The DoH are also considering a fast track for cases under £25,000.The costs are high in clinical negeligence claims because of the complex medical investigations and expert evidence needed. Cases under £25,000 can often involve fatal cases if the Claimant was under 18 years old or clients have a limited life expectancy.
We will be looking carefully at these initiatives to ensure patients are still able to seek specialist advice.
A Duty of Candour
There already exists a duty on hospitals to tell patients when a mistake has occurred. If doctors and nurses continue to work in a blame culture, they can be reluctant to come forward. However, the latest plan is to prevent patients seeing documents around the investigation of a medical incident. We do not see how this will encourage more openness by doctors and medical staff or help to prevent future medical accidents.
At the moment we ask for all investigation documents but under the new plans they would only be disclosed with a court order. In our view this is contrary to the duty of candour. In particular:
– how will patients know if the investigation has produced relevant information for a clinical negligence claim and why should they not be told exactly what has happened, whether or not there is negligence?
– Costs will increase for clients and court time will be wasted if applications to court need to be made before a medical claim can be investigated.
– justice will not be seen to be done
– It creates an unfair system if only defendants have sight of investigation documents which contain a fuller recollection of events by medical staff
– patients will not have the information needed to know if future medical mistakes can be prevented.
We can see no benefit for any patient if this plan is introduced. Indeed, we think it will be a backward step for patient safety and openness by the medical profession. Honesty and avoidable medical accidents should be at the forefront of medical care.
If you would like more information about a clinical negligence claim, or are unhappy with your current solicitor, please contact Julie, Emma or Alison in our Clinical Negligence Department.
” Hi David,
I just want to take the time to thank you for all you have done. I know this case has been anything but simple but you’ve stuck with me through the process.
I thank you for yours and Lee’s continued understanding and co-operation. I can now start my life and try to build a brighter and better future.
If you have instructed solicitors who do not have experience in complex claims please contact us for advice. All enquiries are considered by qualified lawyers so you can have the best possible advice. Martin had no regrets because David Tomlinson personally ran the claim and, with over 25 years expertise handling complex injury claims, he was better able to secure compensation for Martin.
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