THE BLOG

'Never Events' Highlight Need For Faster, Fairer Negligence Claims

10/03/2016 15:10 GMT | Updated 11/03/2017 10:12 GMT

I was recently shocked to hear that more than 1,100 patients have suffered from serious, preventable medical errors in this country's hospitals over the past four years, according to new data recently published by NHS England.

Coined 'never events', these medical mistakes are so serious they should never happen in the first place. They are events so shocking, it's hard to imagine how expert medical professionals with years of experience and robust training can be making these mistakes.

Among the number of 'never events' that have taken place, there have been cases where objects such as gauzes, swabs, needles and even scalpels were left inside patients.

In one particularly shocking case, a patient went into surgery to have a cyst removed but surgeons actually removed one of his testicles. Every man's worst nightmare.

For the victims and families of such 'never' events, the injury itself may only be the start of the story. For too many the pain and indignity caused by the negligence itself is aggravated by the process of gaining legal redress.

For 'never events' - thankfully just one in every 20,000 procedures - you might assume that it would be a simple case of arranging the appropriate level of compensation for the injured patient, enabling them to put the matter behind them and get their lives back on track.

However, even in these extreme cases, there is often a lengthy legal process of establishing the facts of the case, determining where the blame lies and then negotiating over what is a fair settlement. A process that may take years.

All of this is a drain on the lives of the victims and also on the public purse, with lawyers on both sides of the fence needing to go through the motions and present a bill for the time taken.

However, even this situation is preferable to one where the victims of never events can't find any legal redress and negligence goes unchallenged.

In just a few weeks the process to implement fixed fees on matters of clinical negligence will begin. Placing a cap on the fees that lawyers can charge for cases where damages are below a certain amount (a limit that would apply to all but a few of the most dramatic never cases).

Never events, provide a clear example of the need for the new rules on fixed fees to be accompanied by an effective duty of candour - requiring the medical profession to own up and admit fault when things go wrong.

Such a duty is supposed to exist, but anyone involved in clinical negligence claims would tell you that this is applied in theory rather than in day-to-day practice.

Therefore, under any new system, rules need to be put in place to incentivise the right behaviour so when it comes to settling 'never event' cases, all parties strive to achieve the best outcome with the needs of the victim taking centre stage. This could include giving rewards when all parties co-operate, or when admittance of fault is given in a timely manner.

It's time that solicitors and medical professionals start working together and accept that they both have a duty of care to the public. It goes without saying that collaborative efforts to reduce the number of 'never events' happening in the NHS would result in fewer patients being harmed, and that huge legal bill would certainly fall.