What to do when things go wrong : Transcript This is a transcript of the video "What to do when things go wrong...", presented by Tim Spring (partner, Moore Barlow). [00:00:00] Hello, my name is Tim Spring. I am a healthcare lawyer, and for the last 30 years, I've investigated clinical errors and the claims that arise from them. 10 of those years were working as a lawyer for the NHS and the last 20 years acting for patients and their families. I'm going to, talk today about what to do when things go wrong. [00:00:26] What getting help involves and where to find it. I want to make one or two preliminary points. Firstly, healthcare professionals work in difficult and pressured circumstances, and it is therefore inevitable that sadly, on occasion, errors are made. With the benefit of 10 years of experience investigating serious clinical errors for the NHS. [00:00:54] I have to say, however, that I'd be happy to be treated by 95% of those I have defended. The second point I want to make is that with the benefit of 20 years experience of acting for patients and their families. No one wants to be in a position of making a complaint about their health care provider, let alone bring a claim. [00:01:18] And all of those I've acted for have an altruistic regard for the NHS. So when errors made, apart from an explanation, an apology, unfair compensation, all people want is for lessons to be learned. So, what are your options when things go wrong? The first step should be to raise your concern with the doctor or health care professional concerned. That much I think is common sense. [00:01:57] Every hospital has a patient and liaison service PALS. They can offer immediate help and support in getting your concern addressed. If this does not resolve the problem, you can then make a formal complaint. The NHS has one unified complaints procedure. If this does not result in a satisfactory outcome, then you can take the matter to the parliamentary and health service ombudsman. [00:02:31] The ombudsman has the power to direct a further investigation and will even on occasion get an independent expert report. If injury and harm has resulted, which is more than transient, and that means more than short lived, a claim for compensation may be justified. Before that, it is generally advisable to make a complaint. [00:02:59] If the healthcare provider is a GP practice, you can complain to the GP or the Practice Manager. In the case of a hospital, I recommend that you write to the Chief Executive. He or she may delegate the task of investigating your complaint, but by writing to the most senior person in the organisation, you will have fixed that individual with the responsibility of dealing properly with your complaint. [00:03:28] Time can be extended, but you should generally complain within one year of the treatment being provided. Your letters should have a short narrative and timeline. They should focus on the concerns that are most important. The letters should be specific, succinct, and set out with numbered paragraphs so that when you receive the reply, you will be able to instantly notice that the reply corresponds with the points that you have made in your letter. [00:04:00] Now, you may be invited to a meeting. If you feel up to it, accept the invitation, but take support with you if you need it. Do not accept a meeting in place of a written reply to your letter. The problem with meetings, particularly those that take place in stressful circumstances, is that participants can often leave with a different view of what was discussed. [00:04:27] Insisting on a written response, avoids any misunderstanding or, ambiguity. Now, a legal claim would only be appropriate if injury or harm that has resulted is significant, as I mentioned earlier more than short lived. Only instruct a specialist solicitor. Do not be frightened to bombard that solicitor with questions about their experience and the cases they have conducted and what their success rate is. [00:05:02] If you meet resistance when firing questions at you a lawyer, then I would be inclined to do choose elsewhere. The process, that the system manages involves obtaining your records, instructing an independent medical expert before preparing a letter of claim. It is important to appreciate that it is the medical expert who identifies the criticisms that can be made, not the lawyer. [00:05:33] The prospective defendant has four months in which to respond to the letter of claim, and only after this will it be necessary to consider legal proceedings if liability is denied. Litigated cases are disposed of by trial or agreement, but it is only a tiny fraction of cases that get to the door of the court. [00:05:56] The overwhelming majority are settled. Cases settle when the defendant can see that you will prove three things. Firstly, that care fell below an acceptable standard. And secondly, that in doing so, this caused or materially contributed to an injury. And thirdly, you must be able to prove the physical and financial consequences past and future. [00:06:28] What is substandard care? A health care professional is not negligent. If he or she act in accordance with a responsible body of opinion, provided, that opinion is logical. It is not enough to prove what the majority of doctors would do or decide or advise. The law recognises the existence that are responsible minority exists. [00:07:00] You would not win a case, therefore, by proving that 60% of doctors would do or advise something different. The standard quite obviously shifts over time. So every health care professional is judged by the, by reference to the applicable standard at the time the events occurred. Medical care improves in quality over time, and it would be completely unfair to apply the knowledge of 2022 events occurring much earlier. [00:07:33] I want to say something about consent because clients always ask about consent. Consent goes to the issue of patient autonomy. You are entitled to be made aware of any material risks arising out of treatment options. A risk is material, if a reasonable person and the patient's position is likely to attach significance to the risk. [00:08:03] Or a doctor is or should reasonably be aware that you would be likely to attach significance to it. These last words are crucial. It's not just what the doctor considers to be a material, it is what a doctor knows or ought to know you would regard as material. How do you prove an injury resulted? [00:08:30] This is what lawyers refer to as causation. So, where there has been a delay in diagnosing, treating haemochromatosis, injured, the injuries that result may include joint degeneration, a heart condition, liver damage, and so on. So for each and every type of injury, there will be a different medical professional involved for joint degeneration, orthopedic surgeon, heart conditioning, cardiologist. [00:09:03] Liver injury, hepatologist, psychological consequences, psychiatrist. It is the medical professional that determines whether or not the care you have received is substandard and it will be another medical professional who will provide the essential opinion with regard to the consequences that resulted. [00:09:25] The role of the lawyer is simply to ensure that the right experts are instructed and provide authoritative and clear opinions. Experienced and skilled lawyers know how to do this. This is what they do every day of the week. There are, however, particular difficulties with haemochromatosis. Symptoms may be nonspecific. [00:09:50] They may be attributed to alcohol. And damage can silently develop over time. A defendant may argue that joint degeneration would have occurred in any event. We must show or other more properly, you must show with the help of your lawyer that the error came before the injury was sustained, the injury was sustained, and that without the error injury would have been avoided in whole or part. [00:10:23] In contrast, the defendant may try to show that though there was, injury, it occurred substantially before any error capable of being criticised was actually made. This is very common in cases involving haemochromatosis. Case studies can illustrate the difficulties that sometimes arise. [00:10:50] In case study A. The patient developed symptoms of fatigue and general unwellness. In May, 2011 her brother was diagnosed. The patient saw her GP, and in August, 2011 was seen by a hematologist. But it wasn't until 14 months later that at a different hospital, a different hematologist requested genetic testing and venesection resulted. Happily, there was no lasting harm, but for a prolonged period, the patient felt extremely unwell and thought she might die. [00:11:28] In case study B, there was a six year delay. A GP, assuming a high ferritin resulted from alcohol consumption. As I've mentioned before, this is not an uncommon error. In case study C, the position is more serious, an abnormal liver function test in 1996 ought to have led to diagnosis, but it was not until 2007 that the ferritin test was performed, by which time serious injury had been sustained and suddenly the patient died in 2010. [00:12:00] Patient D has it a normal liver function test in 2004. And there was then a six year delay before diagnosis and treatment. At that stage, cirrhosis of the liver had developed. In the case of patient E problems, including osteoarthritis and on the face of it, a six year delay. [00:12:35] Patient F a seven year delay. In this case, abnormal results repeatedly described unbelievably as unremarkable. I want to say something about funding a legal claim. Nowadays, this is most commonly achieved with a conditional fee agreement. No win, no fee. Legal aid is no longer available and funding a case privately is unrealistic. Most trade unions or professional associations would expect a solicitor to act on a no win no fee agreement in any case. [00:13:03] You may, however, have legal expense insurance without knowing it. But most policies are very restrictive and many do not allow you to appoint an independent solicitor of your own choice. I recommend that you locate what policies you have and provide the details to your solicitor so that they can be evaluated. [00:13:28] Compensation is assessed under four categories. There is an award for pain, suffering, and loss of amenity, which is assessed by a reference to the physical and psychological consequences you've suffered. A financial loss includes earnings and out of pocket expenditure. Future financial loss can include total or partial loss of earnings, medical and care expenses. [00:13:56] As long as it is anticipated they may be sustained and you have the supportive medical expert that that is like to say that is likely. Interests can be climbed on the first two categories. We've heard a lot today about protecting the NHS, and this of course, is an obligation on us all. You might therefore ask, do we protect the NHS by not complaining or seeking compensation when medical experts say injury has resulted from poor care? [00:14:32] Well, 20 years ago, the chief medical officer, Lynn Donaldson, addressed this issue squarely. In a publication entitled an organization with a memory, he said that overall there was the belief that information from complaints, was an under-exploited, resource. That means a learning resource from which clinicians can learn to avoid errors. [00:15:00] And he also indicated that data from litigation claims represent a potentially rich source of learning. So one might reasonably say that protecting the NHS means making, complaints when they're appropriate and pursuing, cases when they are justified and have the support of independent experts opinion.