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NHS LITIGATION EFFICACY QUESTIONED

The NHS Litigation Authority’s (NHSLA) ability to correct repeated adverse events, which have led to claims against the NHS, is debated by two reports published recently in Clinical Risk.

In the first paper1 authors led by Ian Christian, a partner at Irwin Mitchell solicitors, argue that valuable information gathered from dealing with accusations of negligence at the litigation stage is currently not being filtered back into Trusts.

The authors suggest that not enough is being done by the NHSLA to collate data in order to reduce future human and financial cost. The NHSLA holds a large amount of information, such as expert reports and counsels’ advices, which are costly to obtain and should be fed back into the system to reduce the chance of incidents being repeated, they claim.

The authors also question which NHS body is best placed to feed information from cases which have resulted in payment of damages back to clinicians, concluding that this is a role which might be expected of the NHSLA.

Christian said: “It is extremely frustrating, as a clinical negligence professional, to be faced by clients and their families who have been harmed by medical errors which you have seen happen before.  One of the driving factors of most patients who make a claim is to ensure it does not happen to anyone else…

“There needs to be some trend analysis from the NHSLA so we can find out if lessons are being learned from the claims brought and there needs to be reassurance that damages are not simply paid out case by case, with no wider analysis of whether the same issues are occurring within a particular Trust, with a particular surgeon or within a particular field of medicine.”

The authors conclude that the responsibility rests with all involved in the litigation system, including solicitors. They suggest a number of recommendations including a unified categorisation system to make it possible to track an incident from occurrence through to conclusion.

In Learning lessons from claims,2 NHSLA risk management director Alison Bartholomew argues that the Authority has done much to promote learning from claims and describes various ways in which information on the liability claims managed by the Authority is used for risk management purposes to contribute to improvements in safety in the NHS.

Her paper asserts that the Authority has built on an established practice whereby solicitors on its clinical panel now provide a separate risk management report on all new clinical claims where they are instructed.  Each organisation is expected to consider the reports on their own claims and determine whether any further action to improve patient safety is indicated and, if so, take the necessary action, she claims.

Whilst acknowledging that lessons can be learned from claims to add to the safety agenda, Bartholomew suggests that relying on NHSLA claims to drive change in isolation could be misleading as these represent only a very small proportion of the number of adverse incidents that occur.

“Using the unique claims experience that it holds, the NHSLA has consistently sought to support healthcare organisations in improving their risk management practices,” she says.  “Based on the findings of assessments carried out against our own claims based standards, the NHSLA believes there is evidence to indicate that many healthcare organisations are using the lessons to be learned from their claims to improve the quality and safety of patient services.  However, there is a potential for us to do more.”

References

1 Ian Christian, Lindsay Gibb and Sarah Rowland.  Improving patient safety: How can the Legal Profession Help? Clin Risk 2011;17:81-4.

2 Alison Bartholomew.  Risk Management: Learning lessons from claims.  Clin Risk 2011;17:85-7.

Published on: July 6, 2011

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