When you sue the NHS, I defend it - AMA

[SilverTimpani]

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

It sounds really interesting! I'm a HCP so I'm interested from the other side of things (sincerely hoping I don't have to come across you any time soon!)

Are there particular areas of medicine that tend to see a lot of claims? Childbirth gets a lot of headlines I think because the settlements (like the one you negotiated) can be really high, but do you actually see a lot of childbirth-related claims? (Curious because my daughter's birth was very badly managed and we didn't know for a long time if there would be long term consequences, but ultimately she was fine so we didn't go down the legal route).

Thanks OP very interesting thread. If anyone read my question and doesn't know, Cauda Equina Syndrome is a rare spinal problem where the nerves at the base of the spine that lead to the bladder, bowels and legs are compressed, often by a badly herniated disc. If treated within 48 hours outcomes are quite good but the longer it is left the more chance of permanent damage to the nerves, leading to lifelong pain and disabilities. Thanks to campaigning the symptoms are now more well known but it is still sometimes missed, or treatment delayed, especially if the case is a little unusual.

Not really a question and I may get flamed but I think consent/explanation of risks is a bit of a black hole. Is there ever a right way of doing it? It seems like a way of ‘getting back’ if something goes wrong when actually, you were wanting/needing the procedure.

I lay on the operating theatre table shaking, watching my babies heart rate drop lower and lower with 15 HCPs as they held my hand and it went down to 50bpm.. the consultant just looked at me and just said ‘verbal consent for a caesarean’ I nodded as she looked up at the anaesthesiologist to (I’m guessing) tell him to smash GA in me and baby’s heart rate started climbing. So they waited. Didn’t need one in the end.

But..

What are they meant to do? Give a long list of outcomes and relative percentage risks in that moment where my baby is dying inside of me? No absolutely not.

Do I care about the possible outcomes? No.

Could I then use that as a way of seeking compensation if I suffered a known risk of a CS? Seems unfair.

@twinningatlife

From what we read in the media it seems almost impossible to get a HCP struck Off and permanently removed from their jobs? They seem to be suspended on full pay for years and then return like nothing has happened despite the devastating consequences - is this really the case?

Hello, don't want to jump on or derail the OP's thread but I have some experience in this area as NHS HR - being struck off or dismissed from employment (different but related processes) is difficult (rightly so, see below for reasons) but certainly not impossible. Go on the GMC (doctors regulatory body), NMC (nurses) or HCPC (other HCPs) websites and you'll see that (sadly) virtually every day/week a HCP is struck off for misconduct, negiligence or poor performance, so it clearly isn't impossible at all. All these bodies publish decisions/judgements from their panels on their websites so you can see for yourself if interested what the process involves and the timescales... And what you see publically doesn't cover the vast volume of cases which are effectively compromised/settled in some way, where HCPs voluntarily choose to erase themselves from their registers, retire, are given formal warnings/second chances and subsequently improve their practice etc etc.

It is a long-winded and at times frustrating process both from the point of view of the 'accused' individual and the employing body, it's not something that can happen overnight but that is for good reasons, you are talking about someone's career here, they may never work again if struck off so (for doctors especially), hundreds of thousands of pounds of impact financially and possibly untold damage on their mental health. Plus of course it costs a lot of time and money to train a doctor or other HCP and we aren't exactly swimming in them in this country. So you don't want that kind of decision to be taken on a whim or on flimsy evidence, it's vital that the full facts are established through a fair investigation, and the HCP is given a chance to respond and put things right/prove they can practice safely. That can take a long time (someone may need to trawl through vast volumes of records, patients or colleagues may need to be interviewed, some of them may have left the trust or even the country and need to be tracked down, there may need to be health and performance assessments of the practitioner), hence you do hear of cases running into years before they are resolved. Of course there are some cases of gross misconduct or terrible, deliberate negligence where it's right that person should never ever practice again but in my experience, like OPs, the vast majority of cases fall in a grey area where although there certainly has been culpability on the part of the HCP there were also mitigating circumstances so it's often a fine balance between giving someone a second chance and protecting the interests of patients and the general public - not easy decisions at all... Certainly I'd say it's pretty rare for someone to be involved in a serious incident that warranted them being suspended and then return like nothing's happened - perhaps to others that's what it looks like due to confidentiality of the process but it's highly likely (unless a weird circumstance where it was all a huge mistake and no fault whatsoever was found on the part of the HCP) that they would have been given a formal warning or put on a formal performance improvement plan...

I hope what @maxelly says is true. It’s easy to lose faith in the NHS and regulatory bodies if one has had a horrible experience owing to deliberate acts.
There’s clearly a very important distinction between negligence and an error however.
And an even bigger gap between error and deliberate misconduct.
I’m currently involved in legal action for deliberate misconduct, denied by HCP and defended vigorously by their employer.
When HCPs are struck off it’s for reasons of gross misconduct usually- I read almost every decision made by the GMC.
Being under the influence of drugs/alcohol at work, stealing drugs from the hospital etc are much more rare than sexual misconduct, harassment and even common assault by HCPs.
That’s a different world from a perhaps preventable outcome (such as infection), a fall in hospital, leaving surgical equipment inside post op and so on.
Making an error is understandable but the NHS has its @never events” and “serious incidents” policies for a reason, and it’s because a competent person should not make those errors.

If I had a question for the OP it’s be along the lines of how can you determine what is a proportionate amount for medical negligence?

Certainly intriguing reading op

@Xdecd

Are there particular areas of medicine that tend to see a lot of claims? Childbirth gets a lot of headlines I think because the settlements (like the one you negotiated) can be really high, but do you actually see a lot of childbirth-related claims? (Curious because my daughter's birth was very badly managed and we didn't know for a long time if there would be long term consequences, but ultimately she was fine so we didn't go down the legal route).

Childbirth claims definitely tend to be the most high-value ones.

I’ve seen many claims relating to vaginal mesh used to treat bladder issues. There are so many of these claims that most have been put on hold while a handful make their way through the courts so they can be used as test cases for the rest.

Other than that, most related to surgery. People who have had poor outcomes, such as arthritis following hip / ankle / knee surgery etc.

@FTEngineerM

Not really a question and I may get flamed but I think consent/explanation of risks is a bit of a black hole. Is there ever a right way of doing it? It seems like a way of ‘getting back’ if something goes wrong when actually, you were wanting/needing the procedure.

I lay on the operating theatre table shaking, watching my babies heart rate drop lower and lower with 15 HCPs as they held my hand and it went down to 50bpm.. the consultant just looked at me and just said ‘verbal consent for a caesarean’ I nodded as she looked up at the anaesthesiologist to (I’m guessing) tell him to smash GA in me and baby’s heart rate started climbing. So they waited. Didn’t need one in the end.

But..

What are they meant to do? Give a long list of outcomes and relative percentage risks in that moment where my baby is dying inside of me? No absolutely not.

Do I care about the possible outcomes? No.

Could I then use that as a way of seeking compensation if I suffered a known risk of a CS? Seems unfair.

It can be difficult. The circumstances of a procedure will be taken into consideration - if it’s a life-saving and urgent procedure then the requirement for consent is much less stringent. A HCP won’t be criticised for not getting consent if they were acting to save a life, even if the outcome is poor.

But it can be a difficult situation. I’ve seen many cases where I think it’s very likely that the patient would have proceeded with the operation (or whatever it is), or were informed of the risk and just assumed it wouldn’t apply to them. But equally, it’s easy for HCPs to assume their patients understand the situation when they actually don’t, and patients often feel they don’t actually have the right or ability to push back against an HCP’s advice. In those situations, I think it’s hard to argue that consent has been effectively obtained.

Your birth story sounds like a difficult one, I hope you and your baby are ok now. In your situation the fact that it was an emergency and your baby’s life was potentially on the line, it’s likely your HCPs would be considered to have fulfilled the requirements for obtaining consent.

@maxelly that’s very interesting, thanks for the addition!

Hats off and total respect to you OP.

I used to work with a law firm that was home to one of the country's most feared criminal solicitors, coroner's office and handled NHS medical negligence cases and prosecutions brought by Health and Safety Executive.

Lot of people tend to wrongly assume when you're fighting cases and taking down NHS or on the side of Health and Safety you are somehow soulless, money grabbing ambulance chasing types devoid of anything more than a black heart.

When you do see the people behind these cases, hear their gutwrenching stories and how they were failed, it's a different world and such a rewarding job to help them get justice and have someone admit their fault and accept liability.

I work with and for CQC occasionally when they need a more indepth, specialist inspection focusing on records, notes and all care related documents. NHS sadly remain the worst for poor record keeping, fiddling, altering and either writing up the most vague entries possible or making it up, adding bits on and not even bothering to make sure it checks out with other records.

Can't change what happened or give back what someone has lost but it makes sure there's less chance of it happening again and whoever royally fucked up and left them that way is held to task.

For me personally working with HSE was the most rewarding because they are the most fair, decent and helpful people who will give employers, businesses and individuals all the help they need to do what they should and be above board and keeping people safe.

When someone repeatedly tries to skip out, cut corners and has a history of non compliance and HSE decide enough is enough, holy shit do they come down on them.

@Blue4YOU

I hope what *@maxelly* says is true. It’s easy to lose faith in the NHS and regulatory bodies if one has had a horrible experience owing to deliberate acts. There’s clearly a very important distinction between negligence and an error however. And an even bigger gap between error and deliberate misconduct. I’m currently involved in legal action for deliberate misconduct, denied by HCP and defended vigorously by their employer. When HCPs are struck off it’s for reasons of gross misconduct usually- I read almost every decision made by the GMC. Being under the influence of drugs/alcohol at work, stealing drugs from the hospital etc are much more rare than sexual misconduct, harassment and even common assault by HCPs. That’s a different world from a perhaps preventable outcome (such as infection), a fall in hospital, leaving surgical equipment inside post op and so on. Making an error is understandable but the NHS has its *@never* events” and “serious incidents” policies for a reason, and it’s because a competent person should not make those errors.

If I had a question for the OP it’s be along the lines of how can you determine what is a proportionate amount for medical negligence?

It’s a case of weighing up several factors.

In terms of the injury itself, there are tables set by the courts which give indicative figures for various injuries and illnesses, with a % uplift for severe cases. You would take that as your starting point.

You would then factor in any costs to the patient - did they have to buy in help at home, pay for private treatment or therapy, miss holidays, purchase specialist equipment etc? Did they miss work? If they have been left unable to work, what is a reasonable estimate or their lost future earnings? Will they need future treatment, or adaptations to their house?

Then there may be an award for, essentially, ‘hurt feelings’, e.g. the emotional cost of the injury. Awards under this head of claim tend to be modest.

Finally there is your legal costs in bringing the claim.

In this country we don’t have punitive damages. So in a different jurisdiction, like the US, the court can make an award of damages specifically to punish the negligent party. In the U.K. that doesn’t exist - damages are intended simply to restore the claimant to the position they would have been in had the negligence not occurred. So damages are supposed to represent the financial cost of your injuries. It’s not an exact science though, many factors have to be considered. Claims which have disputes over the value can be very complex as a result, with expert evidence needed from actuaries / HCPs / accountants etc.

@DogFoodPie

Thanks OP very interesting thread. If anyone read my question and doesn't know, Cauda Equina Syndrome is a rare spinal problem where the nerves at the base of the spine that lead to the bladder, bowels and legs are compressed, often by a badly herniated disc. If treated within 48 hours outcomes are quite good but the longer it is left the more chance of permanent damage to the nerves, leading to lifelong pain and disabilities. Thanks to campaigning the symptoms are now more well known but it is still sometimes missed, or treatment delayed, especially if the case is a little unusual.

I also had CES I was lucky, I told the hospital it was CES despite still walking and having bladder/bowel control. Was right! Had a 5hr op to resolve it

@NotMyCat that was so lucky and I hope you recovered well. In my case there was some delay because all my symptoms were on my left side and my sciatica pain was improving which is not typical for CES, luckily I was given an MRI but not for a week after my symptoms started and then it took another week for the results to come back. Thankfully my symptoms did not get any worse in that time and I am recovering fairly well but it shows how mistakes can happen. The cases I have read about where people are sueing are much worse though, often they had been asking for help for weeks or even months and just fobbed off, and sometimes other HCP like physios and osteopaths had sent them to A&E only to be sent away again.

Thanks for answering OP. This thread is really interesting.
May I ask another?

When you say 'clinical negligence claims', are these only really cases where people have had a physical harm, with long term issues?

Would a case, where several medical professionals, in different areas of the NHS, failed to diagnose a serious illness (cancer)? Would such a claim be taken seriously or even get to someone like yourself If? If so, does it matter if the person will eventually go in to remission?

@NotMyCat @DogFoodPie another one here with CES. Had it 3 times in 15 days. Very unpleasant!! Been left with bowel and bladder issues and a decidedly dodgy left leg and foot. I'm no longer working and I miss it but after spending time in a spinal injuries unit I'm honoured to be able to have use of two legs!

I am genuinely baffled by how NHS Trusts still do what we have long since known and many others before them have been prosecuted for doing and if/ how shit is passed around if at all.

My one real beef is where RGN / RMN qualified staff are held responsible for things they genuinely did not know they shouldn't have been doing, had been actually taught to do and what was standard practice for years until an incident caused it to come under the spotlight.

In its earliest stages, the safeguarding and whistleblowing policies and procedures were equally harsh and unfair on unqualified health and social staff for doing what they had done for years, all the staff had done had done and they weren't aware of it being wrong, had no training or supervision / support from their managers when changes came into play with new legislation and standards.

The system held them accountable, removed otherwise perfectly good care assistants with a genuine kind, caring approach but no training whatsoever and not only left them out of a job but placed them on the barring register so they couldn't work in care again.

It has changed since then and the onus is on providers and managers to ensure they oversee and ensure everything but a frightening number of NHS professionals are clueless. There was a tendency for inspectors to skim over some areas during inspection assuming that because it was overseen and managed by RGN / RMN's they would be up to standard.

It's at least something that is under the radar and people know of / are closer to check at least but it's infuriating how often they get away with shit and how much shit they will try and get away with.

Do you think NHS Resolution or your firm would consider this thread appropriate? Whichever side of the claim you are on, there is still an injured person at the centre of it. Your thread title feels in bad taste, even if your answers have been fairly balanced.

OP I am surprised you haven't had more incidents of doctored records. I think they are quite common.

When my twins were born (induced) I was left alone to give birth to Twin 1 on a toilet floor. His cord snapped as he was born and also he wasn't breathing. I was bleeding, in labour with Twin 2, and behind a locked toilet door on my own. When I did manage to get out and get staff attention, it turned out they didn't have cord clamps in the delivery room so couldn't stop his bleeding initially.

Obviously that is a high risk situation for a premie newborn.

The notes on the birth show none of this. They name a "delivery midwife", they give a time of birth which must be totally made up as all staff were 2-3 rooms away. They give my estimated blood loss which funnily enough is estimated to be very light.

Basically the whole thing is a tissue of lies to stop them being sued if DS did have cerebral palsy or similar.

The whole staff colluded in it, too. Despite the on-paper uneventful birth they sent him for an MRI 24h after birth and assigned him to 2 separate paeds consultants.

Which I am grateful for... but it did feel like a massive hush up. If DS had had serious issues, how could I have got redress given that on paper, nothing went wrong?

Do you find that a lot of claimants exaggerate the impact of what happened and if so, does this make you have a pessimist view of the claims you receive?

@Neron

Thanks for answering OP. This thread is really interesting. May I ask another?

When you say 'clinical negligence claims', are these only really cases where people have had a physical harm, with long term issues?

Would a case, where several medical professionals, in different areas of the NHS, failed to diagnose a serious illness (cancer)? Would such a claim be taken seriously or even get to someone like yourself If? If so, does it matter if the person will eventually go in to remission?

There don’t need to be long term issues for a claim to be successful. Even if there has only been short term injury or illness the claim is still valid, though obviously the value will be less.

Failure to diagnose a cancer could certainly lead to a valid claim. It might depend on certain factors - was the patient left ill or in pain for a needless amount of time, are their prospects of recovery poorer as a result, have they suffered unnecessary anxiety etc.

Even if the person will ultimately go into remission, there could still be a claim if the failure to diagnose has led to pain or suffering in the meantime.

@HDready

Do you think NHS Resolution or your firm would consider this thread appropriate? Whichever side of the claim you are on, there is still an injured person at the centre of it. Your thread title feels in bad taste, even if your answers have been fairly balanced.

My apologies for the title. I can see how it might read as flippant, though that wasn’t my intention.

I’ve seen many claims relating to vaginal mesh used to treat bladder issues. There are so many of these claims that most have been put on hold while a handful make their way through the courts so they can be used as test cases for the rest

My sil is a medical barrister carrying out group cases exactly like this. It's both horrendous and fascinating.

@JohnnyMcGrathSaysFuckOff

OP I am surprised you haven't had more incidents of doctored records. I think they are quite common.

When my twins were born (induced) I was left alone to give birth to Twin 1 on a toilet floor. His cord snapped as he was born and also he wasn't breathing. I was bleeding, in labour with Twin 2, and behind a locked toilet door on my own. When I did manage to get out and get staff attention, it turned out they didn't have cord clamps in the delivery room so couldn't stop his bleeding initially.

Obviously that is a high risk situation for a premie newborn.

The notes on the birth show none of this. They name a "delivery midwife", they give a time of birth which must be totally made up as all staff were 2-3 rooms away. They give my estimated blood loss which funnily enough is estimated to be very light.

Basically the whole thing is a tissue of lies to stop them being sued if DS did have cerebral palsy or similar.

The whole staff colluded in it, too. Despite the on-paper uneventful birth they sent him for an MRI 24h after birth and assigned him to 2 separate paeds consultants.

Which I am grateful for... but it did feel like a massive hush up. If DS had had serious issues, how could I have got redress given that on paper, nothing went wrong?

That sounds very stressful, I’m sorry you had a bad experience.

It may be that I have encountered doctored notes and simply haven’t been aware of it. But much more commonly I find that notes are inadequate - lacking in detail, missing key information etc. It generally not indicative of dishonesty, but rather of someone lacking the time or forethought to provide a comprehensive narrative.