To provide safe and good quality health care nurses and doctors need to reflect on past cases where adverse events have occurred and to learn lessons. Trend analysis should take place, which should inform policy, and the information obtained cascaded down the management chain to frontline staff. It is imperative that this happens, but the all-too-familiar story in the NHS is that it does not to the extent that it should. Many safety lessons from past adverse healthcare events go unlearnt.
This should not happen: lesson learning is a fundamental prerequisite to developing an NHS patient safety culture.
Closed claims analysis
One way to reflect on errors is to look at closed legal claims and examine the causes of litigation. This is a valuable exercise, as it enables a wealth of important detail to be obtained. Solicitors and barristers who act for patients and NHS trusts often post case summaries on their websites and some also post regular blogs on legal issues.
Law firms that act for trusts in clinical negligence cases are detailed on the NHS Resolution website. The website of patient safety and justice charity Action against Medical Accidents has a search function for clinical negligence solicitors, many of whom publish case studies. The Association of Personal Injury Lawyers maintains a list of specialist lawyers. Doctors' organisations such as the Medical Defence Society and the Medical Defence Union regularly publish cases studies and analysis. NHS Resolution annual reports and other publications also include cases and analysis.
These resources (Box 1) provide useful education and training tools. The problem is that it takes time to interrogate them all. However, selecting a sample will offer excellent real-life examples of what can go wrong and the steps needed to deal with problems. Some law firms divide their case studies into discrete clinical areas.
Box 1.Online resources
- NHS Resolution, https://resolution.nhs.uk/2022/01/21/legal-firms-appointed-to-nhs-resolution-legal-panel
- Association of Personal Injury Lawyers, https://www.apil.org.uk/accredited-injury-lawyers/clinical-negligence-specialists
- Medical Defence Society, https://www.medicalprotection.org/uk/hub/case-reports
- Medical Defence Union, https://www.themdu.com/guidance-and-advice/cautionary-tales-2021
Warning on closed claims analysis
It is necessary to put lesson learning from past cases, closed claims analysis, into perspective and take account of the fault-based, adversarial, litigation environmental context within which these cases are heard and resolved. Health warnings can be placed here, as can be seen in recent evidence submitted by the Bar Council (2021) to the House of Commons Health and Social Care Committee (HSCC) (2022) inquiry on litigation in the NHS.
The Bar Council pointed out that clinical negligence cases are very fact specific and that the aim of the proceedings is not designed to produce NHS system-wide improvements in patient safety. The proceedings are fault based, adversarial and focus on the issue of a specific form of dispute resolution between the parties. A patient seeks compensation for clinical negligence and compensation:
‘Litigation has never really been understood to encourage lesson learning and commitment to change, and indeed to suggest the tort system should encourage this, as a principal aim, is to misunderstand the purpose of tort law which is to compensate the victim and not to punish or prevent recidivism by the tortfeasor.
Hempsons Solicitors (2021), in their evidence to the HSCC, cited the dangers that occur when general clinical patient safety lessons are implemented from a case without rigorous attendant clinical research. They discussed the Court of Appeal case of Roe v Ministry of Health [1954] EWCA Civ 7:
‘Whatever the merits of that decision (and it is now thought to have been mistaken) it put back the cause of spinal and epidural anaesthesia in this country by 40 years. Until the 1970's epidural anaesthesia was rare and spinal anaesthesia did not become commonplace until the 1990's. This was largely due to the adverse impact of a generation attempting to learn the lessons of litigation when our cases are best seen as anecdotal illustrations of danger, rather than presenting a template for safe practice based on the sort of evidence that medicine now demands.’
Past cases are still useful
Reports of past cases are still useful patient safety education and training tools but, when applying them in a clinical educational training environment, it is important to stress the context.
It is fair to say that many patients, in taking a case to court, will have an attendant aim of making sure that what happened to them will not happen to anybody else, although this is probably secondary or a by-product of the main aim of securing redress, resolution and compensation.
Clinical negligence is a complicated and expensive area of civil tort law and requires expert legal help, with many complex issues such as causation needing to be established. As the evidence submitted to the HSCC shows cases are not taken on lightly by law firms acting for patients.
The main point
The main point to stress is that there is often no research-based, distilled patient safety learning to be extracted from a single case. Trends, however, can be spotted when similar cases are collated and clinical expert commentary applied to aid understanding and possibly general clinical application.
Diabetes-related complications
NHS Resolution has published several closed claims studies and thematic reviews, the most recent of which, Diabetes and Lower Limb Complications (Mottolini, 2022), reviewed 92 claims involving patients with diabetes. This well-researched report includes recommendations that can help improve patient care and reduce the level of claims and high litigation costs:
‘Since 2013/14, there has been a growth in … clinical negligence claims involving patients with diabetes-related lower limb complications. The majority of claims have involved patients … who went on to undergo a major lower limb amputation.’
It states that 7957 major diabetes-related lower limb amputations were reported in England between 2017 and 2020. Furthermore:
‘Managing the diabetic foot, coupled with the cost of associated … amputations, costs the NHS up to £1 billion annually.’
The report emphasised the severe nature of this increasing problem to individual patients and its life-changing nature. It contains many detailed learning points that can help improve care in this area, as well as providing some context to clinical negligence generally in the NHS, the clinical specialties involved and the costs. The report identifies several common themes at every stage of the patient journey, including:
- Lack of thorough, evidence-based assessments
- Poor documentation and use of inconsistent terminology
- Absence of integrated multidisciplinary care despite multiple disciplines being involved
- Changes to a patient's clinical picture not prompting change in the management plan or escalation of care.
In addition, the report identifies some recurring patterns among the claims:
- The severity of the pathology was not recognised
- The care that followed was not delivered with any urgency.
There are recommendations on a range of issues contained in the report, including education and training, pathways and the provision of consistent services.
HSIB report
Keeping with diabetes care and patient safety publications, the Healthcare Safety Investigation Branch (HSIB) (2022) has produced a report on administering high-strength insulin from a pen device in hospital. The findings (HSIB, 2022:8) include that:
- Nursing staff were not always familiar with the range of high-strength insulins and associated pen devices
- There was variation in the training and competency assessment of health professionals with regard to insulin administration
- National safeguards are inadequate to support the safe use of high-strength insulin by health professionals
- There is a lack of standardisation in the role and training of diabetes specialist nurses.
The report also contains findings on care improvement and makes safety observations.
Role of experts in litigation
A leading clinical negligence lawyer once told me that, in terms of case presentation and management, the most important thing a lawyer needs to get right is the clinical expert in the case. The Medical Protection Society (MPS) (2022) has just published a policy report on the role of the expert witness. It points to the importance of experts and their role in, for example, clinical negligence, coronial, criminal and regulatory cases. There is a case, the MPS argues, to increase the pool of available experts:
‘The pool of experts isn't as wide as it could be, and there is no central register. Attempts to establish one have been met with resistance, largely due to … administrative and governance burdens.’
The report also aims to bring a focus on system failings when experts give evidence. In a clinical negligence case, the focus will generally be on how the individual nurse or doctor performed and what they ought to have done. However, poor staffing, systems and poor policy implementation by management could also be a contributing or main cause.
‘Too often, the current approach following an adverse incident places the emphasis on scrutinising the actions of an individual. However, it is rarely the case that a single individual is solely “to blame”; wider systems issues are often implicated. The concept of “blame” is not helpful in healthcare, it is better for all if a culture exists in which problems can be identified and addressed. Patient safety depends on this …’
Conclusion
There is an important link to be made between clinical negligence cases and patient safety. This was most recently explored in the HSCC (2022) inquiry, and the government is currently looking into the clinical negligence system with a view to reform. The analysis of closed claims, thematic analyses, such as that done by NHS Resolution (Mottolini, 2022), has clear benefits where it is couched in a clinical context to help explain matters.
Where cases are grouped together, and themes are analysed, it provides rich patient safety insights and helps towards improving safety culture. Cases on their own may have more limited value (Hempsons, 2021). I would, however, argue that cases on their own still have a patient safety training and education value if the litigation context is also explained.
The work by NHS Resolution (Mottolini, 2022) and HSIB (2022) on aspects of diabetes care provides well-informed insights into an increasingly important patient safety issue. The MPS (2022) policy report on experts is interesting and the take on bringing in a care systems context perspective is worthy of more research. There are reported cases of clinical negligence where a system of care has failed, which is termed ‘systems negligence’.