When you sue the NHS, I defend it - AMA

[SilverTimpani]

I’m a solicitor who specialises in defending clinical negligence claims. Ask me anything.

Have you dealt with any major situations where an entire caseload of patients have been misdiagnosed or treated incorrectly ? If the cause is mental health problems of the hcp does that impact on the outcome of the case ? What if a manager has tried to stop an hcp practicing but Occ Health deems them fit for work who does the culpability lie with ?

What is the largest settlement you have seen somebody be awarded from the NHS?

For those saying they wouldn't dream of suing the NHS. As someone who has seen their live change beyond recognition, due to not being listened to, I can no longer work, and have been left disabled, yes the NHS is a wonderful thing but not without fault.

I will completely understand if you choose to not answer this but I must ask.

I am currently gathering proof and documents pertaining to an NHS trusts failure to diagnose two of my children with conditions that are life limiting and changing. I have all the SARs and co-operation required to move forward once a decision is made on our formal complaint at the end of the month.

There is no doubt. Child A was under the paed team for 6 years and discharged with no findings. Private assessment found sensory processing disorder, severe language disorder, learning difficulties with an IQ lower than 85, ADHD, ODD and conduct disorder. Child B was under paeds for 3 years following reporting from family of seizure like behaviour and neurological symptoms. Eventually an MRI was granted after family threaten to go private and sue. A severe brain malformation was found and subsequently as was global epilepsy.

What will trigger the biggest impact for change??? Pushing via the ombudsman or compensation? I’m less interested in the money and far more invested in provoking procedural changes. Especially as the trust went on to spend 2 years trying to hold off and mitigate our complaint by accusing me of FII which has since been proven to have never been the case.

@Needawayout

Have you dealt with any major situations where an entire caseload of patients have been misdiagnosed or treated incorrectly ? If the cause is mental health problems of the hcp does that impact on the outcome of the case ? What if a manager has tried to stop an hcp practicing but Occ Health deems them fit for work who does the culpability lie with ?

I haven’t personally experienced this.

In terms of culpability for a negligent HCP, it’s very situational. If a manager had concerns and had acted on these to the extent of their ability (e.g. by passing the issue up the chain) it’s very unlikely they would be considered responsible.

Mental health problems wouldn’t impact on the outcome of a negligence case. Even if you have mitigating circumstances, if you have acted negligently and a person has experienced loss as a result, then compensation is due.

@Pulsr

What is the largest settlement you have seen somebody be awarded from the NHS?

I settled a case for 3.8 million. It was in respect of a child who had been left severely disabled due to preventable birth injuries. The sum was intended to account for a lifetime of specialist care and disability adjustments. It was a very sad case, I still think about it often.

@tearsonmypillowpaininmyheart

For those saying they wouldn't dream of suing the NHS. As someone who has seen their live change beyond recognition, due to not being listened to, I can no longer work, and have been left disabled, yes the NHS is a wonderful thing but not without fault.

I agree with this. The NHS is wonderful, and staffed with wonderful people, but even so when mistakes are made the individuals affected shouldn’t be left with a lifetime of financial difficulty to protect the organisation. People who have suffered due to negligence deserve compensation.

@loopyapp

I will completely understand if you choose to not answer this but I must ask.

I am currently gathering proof and documents pertaining to an NHS trusts failure to diagnose two of my children with conditions that are life limiting and changing. I have all the SARs and co-operation required to move forward once a decision is made on our formal complaint at the end of the month.

There is no doubt. Child A was under the paed team for 6 years and discharged with no findings. Private assessment found sensory processing disorder, severe language disorder, learning difficulties with an IQ lower than 85, ADHD, ODD and conduct disorder. Child B was under paeds for 3 years following reporting from family of seizure like behaviour and neurological symptoms. Eventually an MRI was granted after family threaten to go private and sue. A severe brain malformation was found and subsequently as was global epilepsy.

What will trigger the biggest impact for change??? Pushing via the ombudsman or compensation? I’m less interested in the money and far more invested in provoking procedural changes. Especially as the trust went on to spend 2 years trying to hold off and mitigate our complaint by accusing me of FII which has since been proven to have never been the case.

I’m so sorry for your experiences.

I can only comment in the most general terms, but generally speaking damages claims don’t enable much in the way of organisational change because it’s not within the power of the court to order that systems / processes / practices etc change.

That said, if the failure to diagnose has cost your children in terms of support and opportunities, a claim could lead to a financial settlement that enables you to provide those things now. So while you understandably might not be motivated by money, it’s worth considering if it would make a significant difference to your children.

@StormcloakNord

Do you have to a skewiff moral compass? I imagine you'd have to have one for defending criminals but not sure if it's the same for your line or work

what a silly thing to say. You would certainly change your tune if it is ever you that requires someone to look after your best interests when you are accused of a crime

Thank you for replying.

In cases where payments are made do the trust in question not perform a form of internal review to learn from what happened?

My understanding is that once I go down either route (ombudsman or compensation) I then cannot pursue the other later. I want to make the right choices that will ensure no one else experiences what we did.

1. Do you feel the money awarded as compensation hurts the NHS's ability to provide care to the next patient, risking pushing the NHS into a vicious cycle? Or are the amounts such that you don't think that's a concern.

1. Is it common with clinical negligence claims to have "undisclosed sum" settlements, NDAs, and suchlike? In areas of law where such secrecy is common, how do you feel about it? Seems to me it just helps let wrongdoers to keep doing wrong.

@StormcloakNord

Do you have to a skewiff moral compass? I imagine you'd have to have one for defending criminals but not sure if it's the same for your line or work

It’s remarkable that some people are evidently incapable of understanding the basic legal concepts of ‘innocent until proven guilty’ and ‘a fair trial’. One wonders how they manage to function in society.

Have you experienced HCPs fudging paperwork such as patient's notes? I mean recording them inaccurately. I had a procedure where they should have injected me with a nerve block but they didn't. When I complained about the pain afterwards they looked at my notes and it said that an injection had been given when I know for sure that it wasn't. They didn't believe me.

Similar thing happened where I was on a really noisy ward and hadn't slept for days. I was really struggling and had talked to the nurses multiple times about how I had struggled. One day I had a scan and was put in a wheelchair and given my notes to carry while a porter took me. I read my notes and evert single morning they had written "patient slept well". I was livid but felt in such a vulnerable position and was young, that I never said anything about it.

I don't trust the medical profession to write accurate notes any more.

Also, having spent a lot of time reviewing doctors' mistakes, does it make you more wary of having medical treatment yourself?

Have you ever had a case of Cauda Equina Syndrome that was missed and led to problems? I recently had CES myself and luckily all went fairly well but afterwards I have joined a support group to get more information and there are so many stories of people left with terrible disabilities due to delays in their treatment. They have a charity that campaigns to make sure the symptoms are treated as urgent.

Did you have any medical training prior to getting your job, or did you train as a solicitor and then specialise in this area?

How long does it usually take to process a claim start-finish ?

Are there cases that should deserve a settlement, but don't get it because of lack of evidence etc. Especially in cases mentioned above by a PP where notes on the file are not a truthful representation of what actually happened.

@safariboot

1. Do you feel the money awarded as compensation hurts the NHS's ability to provide care to the next patient, risking pushing the NHS into a vicious cycle? Or are the amounts such that you don't think that's a concern.

1. Is it common with clinical negligence claims to have "undisclosed sum" settlements, NDAs, and suchlike? In areas of law where such secrecy is common, how do you feel about it? Seems to me it just helps let wrongdoers to keep doing wrong.

I don’t think it’s as simple a cause and effect as that. The NHS has insurance so generally payouts aren’t coming from the pool of money used to pay for patient care. I do think it’s possible that litigation can have a chilling effect on a particular HCP’s willingness to undertake certain procedures (for example, surgery on a higher risk patient) but I don’t think it’s a significant impact.

1. I’ve seen this more from HCPs working in the private sector who want to keep their names clear because it could more directly affect their livelihood, but even there I wouldn’t say NDAs are super common. The only times I’ve been asked to secure an NDA have been for cosmetic surgeons who rely a lot on their reputation for their work.

@Kittii

Have you experienced HCPs fudging paperwork such as patient's notes? I mean recording them inaccurately. I had a procedure where they should have injected me with a nerve block but they didn't. When I complained about the pain afterwards they looked at my notes and it said that an injection had been given when I know for sure that it wasn't. They didn't believe me.

Similar thing happened where I was on a really noisy ward and hadn't slept for days. I was really struggling and had talked to the nurses multiple times about how I had struggled. One day I had a scan and was put in a wheelchair and given my notes to carry while a porter took me. I read my notes and evert single morning they had written "patient slept well". I was livid but felt in such a vulnerable position and was young, that I never said anything about it.

I don't trust the medical profession to write accurate notes any more.

I’ve never encountered a deliberate fudging of notes, but I do find notes to generally be incredibly scarce. I sometimes have an HCP tell me they had a 20 minute conversation with a patient about the risks of a procedure and all the notes say is ‘consent obtained’. The conversation may well have taken place, but it hasn’t been recorded in any useful way.

Your experiences sound awful, I’m sorry to hear them. I can imagine that like any profession there are unscrupulous members who don’t do this aspect of their job properly.

@Kittii

Also, having spent a lot of time reviewing doctors' mistakes, does it make you more wary of having medical treatment yourself?

Not at all, which is perhaps strange.

I would say I’ve only ever had a couple of experiences where I thought the HCP I was defending had shown themselves to be a bad HCP. Almost every time it’s someone who is actually good and conscientious and caring who has just had a slip up. It reassures me that almost every time you have treatment, it’s going to be ok.

I do feel more concerned about the pressure the NHS is currently under. It’s very underfunded and HCPs are feeling the pinch badly.

@DogFoodPie

Have you ever had a case of Cauda Equina Syndrome that was missed and led to problems? I recently had CES myself and luckily all went fairly well but afterwards I have joined a support group to get more information and there are so many stories of people left with terrible disabilities due to delays in their treatment. They have a charity that campaigns to make sure the symptoms are treated as urgent.

I haven’t come across this before - I’ll read up on it now.

@overwork

Did you have any medical training prior to getting your job, or did you train as a solicitor and then specialise in this area?

No medical training at all. I trained as a solicitor and started working in the general litigation department of my firm, and gradually came to specialise in this area.

@blueberrywaffle

How long does it usually take to process a claim start-finish ?

It varies hugely from a few months, where liability is not in dispute and agreement can be reached on the value of the claim, to several years for complex claims requiring expert evidence and a dispute on quantum. Most commonly I would say it’s between 1 and 2 years, but that’s a very rough guide.

@Neron

Are there cases that should deserve a settlement, but don't get it because of lack of evidence etc. Especially in cases mentioned above by a PP where notes on the file are not a truthful representation of what actually happened.

Good question. It’s very difficult to say.

Generally, insufficient evidence goes in the favour of the claimant rather than the defendant. If a claimant is saying X happened and an HCP is saying Y happened, if the HCP can’t evidence from their notes that Y happened then it’s very unlikely their account will be accepted unless the claimant is extremely lacking in credibility and the HCP very convincing. But because HCPs have a duty to record notes, it’s looked upon very poorly when they don’t.

If the notes have been faked as in the previous PPs experience it’s possible they could be refused a settlement they ought to have had, but notes are only one part of the picture so it would depend on the circumstances. Hopefully this is rare!

More commonly an issue is when a patient clearly has an ongoing problem, but there is no clear evidence that it’s the result of the HCP’s actions. I had one case involving a woman with long term gynaecological issues for which she sought treatment. A procedure was performed to try and resolve these, and she was left with ongoing pain and other issues. She claimed this was due to the procedure having been performed negligently, but she had been having these issues before the procedure as well. It was really unclear whether the procedure had caused her ongoing issues, or simply not successfully resolved them. There just wasn’t the evidence to prove it either way.

We offered a modest settlement to put an end to the claim, and it was refused. That one went to court and she was ultimately unsuccessful. It was a tough one because she was suffering, but it just wasn’t clear why. Her solicitors had badly advised her I think, because she was left responsible for our legal expenses (which were significant by that time). They should have advised her that her prospects of success were poor and that she should accept our offer.