Is there a Compensation Culture in the UK or is that just what politicians want you to think?

by , January 15th, 2013

HealthcareFor the last 12 months the press have reported on two subjects that always catch my eye. One is the ‘Compensation Culture crippling the NHS’ and the other, the ‘Widespread budget cuts effecting front line care’.

It doesn’t come as a great surprise to me that these two issues are linked but you rarely see the press taking that angle.

Recent news reports have highlighted 17 NHS Hospitals amongst 26 healthcare providers in England that are failing to operate within safe staffing levels.  The Care Quality Commission, in identifying these hospitals (two of which are Sussex based) have stated that there was not sufficient staff “to keep people safe and meet their health and welfare needs”.

And just last week, the Today programme explored Defence Union claims that “unsustainable” levels of compensation were being paid by the NHS in clinical negligence cases.

Staffing shortages have long been a concern for the NHS and were put in the spotlight by the revelations that at Stafford Hospital up to 1200 patients died needlessly as budgets were slashed, whilst the hospital aimed for NHS Foundation Trust status.

Clinical negligence and personal injury lawyers are often accused of bringing too many claims and fingers have been pointed, accusing us of creating a “compensation culture”. This is despite the fact that there is no real evidence that one actually exists.  In fact, the number of claims brought against the NHS has remained static for several years.

Irrespective of how many people are attracted by some firm’s glitzy advertising with teddy bears on crutches, the basic legal principles have not changed in decades. Compensation is only ever payable when a person is injured as a result of a failure by clinical staff to provide the care to which that person was entitled. The amount of compensation payable is linked only to the severity of a person’s injuries and the amount of care and assistance they need in the future.

Without a failure to provide the level of care that we are all entitled to expect, there would be no more compensation of the magnitude Charlie Scott received.

To my mind, in order to alleviate the financial pressure on the NHS in the long run, it would seem that more focus and investment should be placed on training staff and ensuring adequate numbers of clinicians are available. It should be about investment in better care and not finger pointing and blaming when it all goes wrong. Ultimately, such action will prevent a claim from being brought in the first place and more importantly, give people access to the care they deserve.

By Emma Grose-McCall

 

 

“Cold Callers”

by , December 15th, 2011

Clinical NegligenceWhen ‘Unknown Caller’ flashes on the screen of my mobile I’d like to leave it ring but, with two young children, there’s always the concern that it may be their school.

This morning when my phone rang, rather than being greeted by the head mistress, I was contacted by a call centre offering legal services.  The cheerful agent informed me that she wasn’t calling to sell anything and that the company she was calling from “had been set up by the government to help people like me by providing free legal advice”. Out of curiosity I stayed on the line. I was offered free advice in relation to Employment matters as well as claims for Clinical Negligence, Personal Injury and mis-sold Payment Protection Insurance. I was told twice more that this was a government backed scheme.

When I asked for clarification on how they were set up by or backed by the government the agent was unable to answer and conceded that she “did not know exactly”. The reason that she did not know was that they are not in anyway connected. It was a blatant mis-representation. In fact, solicitors who work on personal injury cases should not engage in cold-calling. That is the opinion of the government and of several professional bodies including the Association of Personal Injury Lawyers, (‘APIL’) of which we are a member firm.

APIL states, “No APIL member shall personally, or through a representative, directly contact a potential client (except through permitted advertising), where there has been no request for such contact (cold calling’).” It is highly advisable to choose solicitors who are members of APIL; cold-calling, therefore, should work as a warning sign about the company doing so. The Department of Justice and the Solicitors Regulation Authority agree with APIL on this.

It is worth mentioning that there is a similar outcry regarding insurance companies cold-calling people who may intend to pursue an accident injury compensation claim following a road traffic accident or selling their details to others.

This is an industry with which I am familiar; I am used to questioning credentials. However, average people are not and could find themselves poorly represented and with little recourse.

Choosing to pursue a compensation claim for your Personal Injury/Clinical Negligence claim.

If you have been injured through someone else’s fault or negligence, you may be eligible to make a claim for compensation. Mayo Wynne Baxter has a team of specialist Personal Injury and Clinical Negligence solicitors second to none in the south east. If you feel you need advice in relation to a claim, please contact a member of the team to arrange an initial free consultation.

 By Emma Grose-McCall

Amy Pickard’s tragic story shows importance of inquests

by , December 8th, 2011

Clinical NegligenceInquests are never happy events but yesterday I witnessed one of the saddest stories I’ve heard in a long time. Amy Pickard was 17-years-old and seven months pregnant when she experienced a heroin-induced brain injury. Her mother Thelma Pickard was with Amy every day for the eight years she remained in a coma, until her unexpected death in October 2009.

During that time a worldwide trial of a drug found to awaken coma patients helped Amy breathe by herself, swallow small amounts of food and begin to communicate. Thelma planned to bring her home in 2010 but ten days after moving to a new care home in Hastings Amy passed away overnight. An inquest was called to investigate what happened.  

While it did not make easy listening the proceedings at Hastings County Court gave Amy’s family and friends important facts about the events that led to her death. Like many bereaved parents Thelma Pickard took the stand and remained calm and grounded throughout.

After hearing all the evidence Coroner Alan Craze judged that Amy was not an addicted drug user and the day she slipped into a coma may have been the first time she had taken heroin by injection. He recorded a verdict of death by ‘non-dependent use of drugs’ and judged that on the balance of probabilities Amy finally suffered a ‘cerebro-corticogenic’ cardiac arrhythmia which led to her death.

Whilst it can involve reliving painful events most bereaved people we work with find the inquest process helpful in understanding the circumstances surrounding a sudden death. Conclusions reached at inquest can also inform decisions on health policies and improve care for others if the Coroner makes recommendations.

For example another inquest we were involved in this year is sparking improvements in training on anaphylaxis. 29-year-old Sacha Rumaner died in a dental surgery in Brighton after a sudden, extremely rare allergic reaction to an ingredient in mouthwash.

Dental staff had very little time to react and there is no certainty Sacha would have survived even with instant treatment, but Coroner Karen Henderson judged the failure to recognise anaphylactic shock removed the window of opportunity to administer adrenaline. She recorded death by medical misadventure and made several recommendations to aid training for dental staff and ambulance crews. As well as saving lives, improvements like this aim to protect health professionals from awful situations.

Our clinical negligence team at Mayo Wynne Baxter is one of the few in the South East to specialise in representing people at inquest. We help families discover the answers they need.

By Emma Grose-McCall

Concerns over inquest ‘failures’ after hospital deaths

by , November 17th, 2011

Medical NegligenceThe BBC has this week been reported that some coroners in England and Wales are failing to fully investigate hospital deaths.

It has been said that:-

  • There is inconsistency in the way that coroners investigate deaths and conduct inquests.
  • Many coroners do not routinely examine medical records

It was hoped that the appointment of a Chief Coroner to oversee that Coronial system nationwide would resolve the problem of inconsistency, but this long awaited reform was recently abandoned by the Government to save money.

The charity Action Against Medical Accidents (‘AVMA’) has worked with scores of families across England and Wales.  It says there is a huge disparity in the approach of coroners to the disclosure of documents, and that in its experience, many do not routinely obtain or read the medical records.

“If a coroner isn’t going to look at those records, then it is very difficult for a family to feel anybody’s got to the bottom of what has gone on in the events leading up to their loved one’s death,” says the head of the charity’s inquest project Lisa O’Dwyer.

The government admits urgent reform is needed to make the inquest system more consistent inEngland and Wales.

It is planning a national charter (pdf) to set out standards of service that families can expect and a new ministerial board to push forward reforms.

 By Emma Grose-McCall

 

Can You Trust Your Doctor?

by , October 4th, 2011

clinical negligenceI always take a keen interest when investigations into healthcare professionals feature on the box and channel 4’s ‘dispatches’ last night was no exception.

800,000 people visit their GP each day. It is the first point of contact for most NHS treatment.  It is not surprising that, traditionally, GPs are viewed by many as the cornerstone of our community and we will follow their advice unwaveringly, unfortunately, at times, with devastating consequences.

What did come as a surprise was that even when the authorities have serious concerns about a doctor’s fitness to practice they don’t always act promptly to alert patients or the GMC and that failing doctors would appear to routinely slip through the system.

The programme included interviews with Aneez Esmail, Professor of General Practice at the University of Manchester, and Dame Janet Smith, DBE Chair of the Shipman Inquiry, during which Professor Esmail acted as an advisor.

The Shipman Inquiry cost £25 million and lasted nearly six years. It was the most comprehensive investigation of the state of primary care since the creation of the NHS. But, sadly, many of the recommendations in relation to safeguarding patients appear not to have been implemented

‘Dispatches’ undertook secret filming in a select number of GP practices which uncovered concerning evidence of misdiagnosis by doctors who have failed in the past, but are still practising. Reporter Jon Snow revealed that GPs who have been sanctioned by the authorities in the past are not regularly checked to make sure they are safe to practise. Even GPs who have been punished by the authorities in the past are not regularly checked to make sure they are fit to practise.

Also featured was the heartbreaking story of Joseph Seevaraj and his parents who were represented by the Mayo Wynne Baxter clinical negligence team. Joseph’s parents had sought medical help for their son, who had tonsillitis. Joseph was prescribed antibiotics, but when he started to vomit and had diarrhoea, Mr Seevaraj phoned for further help.

Because it was a Sunday, he could not talk to the family doctor. Instead, he was connected to the local out-of-hours service and was put through to Dr Tilo Schippers, a German-trained medic. Despite being told of concerns that Joseph was becoming dehydrated, Dr Schippers advised there was nothing to worry about and that, no, it wasn’t necessary to bring him in for further treatment. Despite Mr Seevaraj’s call being the third contact with the health services in relation to the same complaint Dr Schippers did not undertake a home visit, in breach of the Health Authority’s own procedures.

Reassured by Dr Schippers, Mr Seevaraj followed that advice – and the following morning woke to find that his son was dead. An inquest would later hear that had Joseph been taken to hospital, the septicaemia that claimed his life could have been treated.

I think the programme highlighted that there are still some fundamental problems concerning the monitoring and regulation of doctors. For those of you who missed the episode, you can still view it on channel 4 on demand.

http://www.channel4.com/programmes/dispatches/4od#3236726

Mayo Wynne Baxter has a team of specialist Clinical Negligence solicitors second to none in the south east. If you feel you need advice in relation to misdiagnosis or delay in treatment, or any other clinical negligence issue, please contact a member of the team to arrange an initial free consultation.

By Emma Grose-McCall

 

Emergency surgery patients’ lives at risk

by , September 30th, 2011

Clinical NegligenceLeading surgeons say that the lives of thousands of non-cardiac NHS emergency surgery patients are being risked by poor care and delays in treatment.

The report by the Royal College of surgeons “The Higher Risk General Surgical Patient: towards improved care for a forgotten group” highlights a number of issues including;

  • Approximately 170,000 patients undergo non-cardiac* emergency operations each year. Of those, 100,000 will develop complications and 25,000 of these patients will die.
  • Among the elderly, deaths can climb to 40%.
  • Emergency major gastrointestinal (abdominal) surgery has one of the highest mortalities, which can reach 50% in the over 80s.
  • Poor access to facilities such as scanners and operating theatres means diagnosis is sometimes slow
  • Not enough patients receive critical care after surgery and when they do it is for too short a time.
  • Junior staff are often left to deal with complex and dangerous cases along with any complications that may arise.
  • Elective or planned surgery may have been prioritised over emergency surgery.
  • There can even be significant differences from day-to-day within the same institution.

*The report says the non-cardiac category includes most major gastro-intestinal and vascular procedures.

Iain Anderson, the author of the report and a consultant general surgeon at Salford Royal NHS Foundation Trust, said trusts needed to acknowledge that problems exist and review the way their services work.

Interviewed by BBC Radio 4’s Today programme Mr Anderson has said “Every single emergency patient who comes through the door of an NHS hospital should have an individual risk assessment, diagnosis, treatment plan and post-operative care plan prioritised according to need,”

“Instead we have some of the NHS’s sickest patients languishing on inappropriate wards, treated by juniors and with no plan in place to deal promptly with unexpected complications.

“These tend to be the patients who end up in intensive care units for lengthy periods of time or, sadly, too sick to be helped.”

“There’s been a general failure to understand just how high risk this surgery is, both by the patients – sometimes by the doctors – but certainly by health service managers.”

The report has suggested a number of improvements which include;

  • Recognition of the need for improved services, including fast access to operating theatres
  • Routine risk assessment and tailored management of every patient
  • Better use of critical care
  • Improved post-operative care, including treatment of severe infection
  • Routine audit of emergency patients

However, surgeons say NHS managers in particular need to recognise the problems facing those described as the “forgotten patients” of the health service.

A spokesman at the Department of Health said the NHS was being modernised to improve results for patients and safety was at the heart of the service.

“Hospitals should follow this guidance and monitor the quality of care they are giving to their patients and ensure that they are providing appropriate levels of services and staffing.”

 By Emma Grose-McCall

Expert witnesses lose immunity from being sued over matters arising in the course of proceedings.

by , April 21st, 2011

Personal InjuryIn Jones v Kaney [2011] UKSC 13, the Supreme Court removed the 400-year-old protection that gave expert witnesses immunity from suit for breach of duty whether in contract or negligence, in relation to their participation in legal proceedings.

Mr Jones had brought a personal injury claim after being seriously injured in a road traffic accident. On the advice of his orthopaedic expert, his solicitors instructed the Respondent, a clinical psychologist, to prepare a report on his psychiatric injuries. She reported that Mr Jones was suffering from post-traumatic stress disorder (PTSD).

The Defendant’s expert claimed that Mr Jones was exaggerating his symptoms of PTSD, as such the District Judge ordered the experts to prepare a joint statement. The discussions took place over the telephone and the Defendant’s expert prepared the joint statement which the Respondent dully signed.

It later transpired that:

1. The Respondent had not seen the reports of the opposing expert at the time of the telephone conference;

2. The joint statement did not reflect what the Respondent had agreed in the telephone conversation, but she had felt under some pressure in agreeing it;

3. Her true view was that the claimant had been evasive rather than deceptive;

4.  It was her view that the claimant did suffer PTSD which had subsequently resolved;

Mr Jones sought permission to change his psychiatric expert, but the District Judge would not permit this. The joint statement was so damaging to the claim that the appellant settled for a lower sum than he might otherwise have been able to achieve.

Mr Jones issued proceedings for negligence against the expert. The appeal against the order went directly to the Supreme Court as a point of general public importance.

Giving the leading Judgment, Lord Phillips was of the view that the expert witnesses owed a clear contractual duty to exercise reasonable skill and care, he believes “the most likely broad consequence of denying expert witnesses the immunity accorded to them … will be a sharpened awareness of the risks of pitching their initial views of the merits of their client’s case too high or too inflexibly lest these views come to expose and embarrass them at a later date. I for one would welcome this as a healthy development in the approach of expert witnesses to their ultimate task (their sole rationale) of assisting the court to a fair outcome of the dispute (or, indeed, assisting the parties to a reasonable pre-trial settlement).”

There are of course those who will argue that the threat of litigation will deter professionals from acting as expert witnesses. It should be remembered that an expert will not be sued just for being mistaken. To be negligent you have to have fallen far below the expected standard, why should an expert be protected from this?

By Emma Grose-McCall

GPs are given new guidance on Meningitis ‘Early Indicators’

by , February 28th, 2011

symptoms of meningitisMeningitis is the inflammation of the lining around the brain and spinal cord. It is a deadly disease that can kill within hours. 

Unfortunately, about half of children with meningococcal disease are initially misdiagnosed when they present to their GP. This can lead to a delay in getting urgent hospital care and contribute to a poor outcome. Approximately 1 in 10 infected with the condition die, 15% are left with severe disabilities including sight and hearing loss.

The difficulty for GPs and others who provide first-contact care for children is that in the early stages of this disease, the typical features of meningitis or septicaemia may not be present. Indeed there may be little to distinguish the child from one with a viral illness.

A study reported in The British Journal of General Practice this month has said that headaches, pale colour and cold hands and feet are not reliable early signs of the disease. The rash, more commonly associated with meningitis, may appear much later during an infection.

The researchers say “Only confusion, leg pain, photophobia, rash and neck pain/stiffness can be considered ‘red flags’ for this illness.” Further, a headache and a pale colour were less common in children with meningococcal disease than in those with minor infections.

On the whole, charities have praised the study. Sue Davie, chief executive of the Meningitis Trust, said: “Anything that helps early diagnosis is a good thing.” However, she said this was advice for GPs and warned against parents ignoring other symptoms: “I’m always cautious about homing in on one or two symptoms as parents need to be vigilant against them all”

Potential for Negligence

Litigation in relation to meningitis and septicaemia is often difficult to pursue. However, a claim for compensation can be made where it can be shown that one or more of the following errors has occurred:
•           Delayed diagnosis of meningitis;

•           Inappropriate treatment for meningitis;

•           Delay in providing treatment once meningitis has been diagnosed.

Mayo Wynne Baxter has a team of specialist Clinical Negligence solicitors second to none in the south east. If you feel you need advice in relation to the above, or any other clinical negligence issue, please contact a member of the team to arrange an initial free consultation.

By Emma Grose-McCall