Transcript Errors in healthcare

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
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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.
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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
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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
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Types of error
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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
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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
REALITY
2005 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”.
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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
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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
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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
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1990 – NHS claims cost £65.5 million
2005/6 - claims cost £560 million
2009 - NHSLA estimated £8.2 billion claims
outstanding in England
2011Estimate of around £16 billion
outstanding claims in England
Between 2008 and 2011 in Wales - claims have
almost doubled
Outstanding liability March 31st 2010
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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 2006
Failure to diagnose preeclampsia
£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)
2,000,000 1,970,561
1,800,000
1,600,000
Value (£000)
1,400,000
1,200,000
1,000,000
871,645
800,000
583,232
600,000
400,000
200,000
290,867
103,275 75,337
49,749 48,488 21,697 11,226 8,658 6,881
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Specialty
2007-8
Wales Audit Commission figures
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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
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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 indexlinked 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
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Wales 2008-11
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£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
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Rise in the number of no win, no fee claims
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Solicitors are now charging £600 an hour (twice the
previous rate).
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Patient's solicitors fees cost the NHS in England £90
million a year - an increase of 122 per cent on four years
ago
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Solicitors argue that they have a higher mark up
because they risk having no fee at all, and that cases are
becoming more complex.
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NHSLA says “the truth of the situation is that they cherrypick the cases they are most likely to win."
Costs and damages
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United Bristol Healthcare
Legal fees: £1.65m
Damages: £1.09m
University College London Hospitals
Legal fees: £1.27m
Damages: £610,000
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Doncaster and Bassetlaw Hospitals
Legal fees: £1.2m
Damages: £1.16m
Salford Royal
Legal fees: £1.03m
Damages: £521,000
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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.
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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
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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
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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
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Mistakes by maternity expected to cost
the NHS £235 million in 2012
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£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
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(Telegraph April 2012)
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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
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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)
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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
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“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?
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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!
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New attitudes in courts
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“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