NHS Clinical Negligence Claims: Learning From Mistakes?

• Published date: 24 February 2022
• Subject Matter: Litigation, Mediation & Arbitration, Personal Injury, Professional Negligence
• Law Firm: Anthony Gold Solicitors LLP
• Author: Ms Ali Malsher

For several years now the NHS (less so the private providers of healthcare) have reviewed their approach to incidents where something goes wrong. There is of course the duty of candour which requires all NHS staff to act in a transparent way where things have gone wrong. NHS Resolution, who deal with claims, provide guidelines and advice in these circumstances. As a clinical negligence specialist dealing with claimants, the usefulness of the duty of candour varies somewhat depending on whether it is really applied.

The result of failures to make an early admission is often that the clients start litigation. The patient has no choice but to consider litigation to receive an appropriate response and also to obtain compensation for the harm that has been caused. Litigation is a slow process, particularly where there is a failure to admit fault and harm. It can mean that there may be three or four more years before that issue is resolved and the claimant obtains either settlement or interim payments to aid their financial needs.

In this period there isn't an obvious source of treatment and assistance for claimants. In essence claimants are left in limbo awaiting a decision leaving them without the care they need for years. However regardless of whether they need the compensation or not, the process is so slow and the failure to admit is so common that it means that most claimants are waiting for years before in many cases the inevitable occurs and there is an admission of fault.

By way of an example, I have case in which a claimant has had an amputation as a result of significant and lengthy interventions which have not dealt with underlying infections over several years. Our orthopaedic surgeon indicated this is "barn door" negligence. Our plastic and microbiology experts confirmed the same. Some four years down the line we finally have an admission of fault. This was always a case in which the circumstances were so clear that the admission should have been made at the outset. Yet many years after the duty of candour, several years after the issue of proceedings, it is only at a late stage that liability is admitted.

It does not take a genius to work out the distress that has been caused to a claimant and this is not an unusual scenario.

Leaving aside however the issue of time - the circumstances which give rise to claims are often similar. This was a failure to diagnose and deal with infection amongst other matters. I have had several cases with similar...