NHS medical negligence: Learning from mistakes?

At the time of writing, we are drawing near to the end of the Department of Health and Social Care (DHSC) consultation on fixed recoverable costs for lower value clinical negligence claims (24 April 2022). Therefore, it is clear to us, our clients and other clinical negligence lawyers that more attention is needed to the patient safety issues that allow preventable injuries and damage, rather than concentrating on the level of legal costs paid when patients seek compensation for the consequences of the mistakes that have caused avoidable harm.

In the decades that we have worked with clients who have been let down by an otherwise trusted group of health professionals, the repeated refrain that we hear from our clients, is that they want to stop what happened to them happening to anyone else. In addition to getting somebody to say sorry, this is what our clients really want.

While we see the same issues of breach of duty repeated time and time again, helping victims of ‘never events’ can be particularly frustrating, acknowledging that these incidents are usually entirely preventable.

Preventable damage

Each year, the NHS publishes a report detailing the type and number of serious, largely preventable patient safety incidents which accept should not have happened in the first place. If the health care providers had implemented existing national guidance and/or safety recommendations, these incidents, known as Never Events, would not have occurred.

Between 1 April 2021 and 31 January 2022, despite the reduction in procedures carried out due to the covid-19 pandemic, the provisional figures reported by the NHS record 349 Never Events over a period of 10 months, giving an average of 35 preventable incidents each month. As part of the reporting process, the different types of Never Events are set out and each year include incidents of wrong site surgery, retained foreign objects post procedure, recorded occasions where the wrong implant or prosthesis has been implanted, chest or neck entrapment in bed rails, falls from poorly restricted windows and unintentional connection of a patient requiring oxygen to an air flow meter.

In the report to 31 January 2022, there were 146 recorded Never Events under the category “wrong site surgery”. Examples in the 2021/2022 included surgery that was carried out on the wrong side of a patient’s spine, an incision that was made into the wrong side of a patient’s head, a nerve root block that was carried out on the wrong patient and a procedure that was undertaken on the wrong ankle.

Despite systems being in place to count in and count out equipment and swabs used during surgery, the most recent NHS Never Events report records 85 preventable incidents involving retained foreign objects post procedure, including a scalpel blade, a trial shoulder prosthesis and a number of swabs.

Patient safety

In the past, we have represented many victims of Never Events, including the family of a man who had a surgical swab left inside him for 8 years after cardiac surgery. When he died 8 years later, the coroner said the swab had contributed to his death, as a large abscess was found to have grown around the swab. This enabled his heart to work more effectively and contributed to him dying earlier than he would have done if care had been taken to check the number of swabs that had been used and to make sure that they were all removed once the treatment had been completed.