UK Clinical Negligence

In the UK, “clinical negligence” is an umbrella term for any medical procedure that results in a loss, an injury or the avoidable deterioration of an existing condition due to a breach in the accepted standard of care. A claim for clinical negligence compensation can be made after childbirth injuries, misdiagnoses in Accident & Emergency, wrong site surgery or any number of medical scenarios in which an injury is sustained due to negligence.

In order for a clinical negligence compensation claim to be successful, it has to be shown that “at the time and in the circumstances” a medical professional demonstrated a poor professional performance which “on the balance of probabilities” resulted in a loss, an injury or the avoidable deterioration of an existing condition. If an injury has been sustained that could not have been avoided, or negligence has undoubtedly occurred but not resulted in an injury, it will not be possible to make clinical negligence compensation claims.

For professional and independent advice about claiming compensation for clinical negligence, it is recommended that you speak with a solicitor at the earliest practical opportunity. Once you have discussed the nature of your injury and how you believe it occurred, your solicitor will request access to your medical records in order that they can be reviewed by a medical expert. The medical expert´s opinion of the treatment you received will be the foundation of your clinical negligence compensation claim.

Increase in Claims against Primary Care Nurses for Medical Negligence

The Medical Defence Union (MDU) has reported a steep rise in claims against primary care nurses for medical negligence over the past decade.

The MDU is one of the largest organisations providing medical practitioners in the UK with insurance against medical negligence claims. In 2005, the organisation recorded just two claims against primary care nurses for medical negligence. In 2015, that number had risen to twenty-five.

Much of the increase is attributed to the changing role of primary care nurses in the past decade. An analysis of the claims against primary care nurses for medical negligence shows that nurses are seeing patients with more acute conditions – patients who historically would have been seen by a GP.

The report by the MDU mirrors one produced in 2012 by the Medical Protection Society that attributed the increase in claims against primary care nurses for medical negligence to an expansion of the nursing role and a greater awareness of patients´ rights.

The figures produced by the Medical Protection Society showed the majority of claims against primary care nurses for medical negligence related to missed diagnoses, while the second most common cause was a failure to properly manage chronic diseases such as diabetes, asthma, coronary heart disease and hypertension. Three contributing factors were identified by both organisations:

  • The failure to refer (or a delaying in referring) a patient to a GP or specialist.
  • An inadequate assessment of a patient´s condition.
  • Inadequate monitoring of how a disease is progressing.

The MDU´s medico-legal advisor – Dr Beverley Ward – said: “Many practices have devolved more responsibility to nurse practitioners in their team to cope with the increasing demand. However, in taking on roles such as assessing and diagnosing patients, prescribing medicines, and running minor injury clinics, nurse practitioners are also at an increased risk of patients holding them individually accountable if something goes wrong.”

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Family Settle Claim for a Lack of Medical Care at a Birmingham Hospital

A family has settled its compensation claim for a lack of medical care at a Birmingham Hospital following their son´s death due to brain damage.

On 31st December 2009, Ross Askew (33) from Selly Oak in the West Midlands started to suffer abdominal pains. He attended the Selly Oak Hospital the following day, and was transferred to Birmingham´s Queen Elizabeth Hospital after being diagnosed with severe necrotising pancreatitis.

During the admissions process, Ross – who was already undergoing treatment for a recurring brain tumour – started to vomit bile, which blocked his respirator. Unable to breath, Ross suffered acute respiratory failure and went into cardiac arrest.

Due to being starved of oxygen, Ross suffered a significant brain injury. He was transferred to the specialist rehabilitation unit in April 2010, and discharged into the care of his family the following August. Tragically, Ross died on 10th October 2011 after being readmitted to hospital for treatment on his brain tumour.

Ross´s devastated mother – Carol – sought legal advice, and made a compensation claim for a lack of medical care at a Birmingham hospital. Carol alleged in her legal action that the care provided during Ross´s admission to the Queen Elizabeth Hospital was sub-standard and responsible for his death.

The University Hospitals Birmingham NHS Foundation Trust denied liability for Ross´s death, and argued that the treatment he received during the admissions process was unrelated to the cause of his death. Nonetheless, an undisclosed settlement of compensation was negotiated between the parties without an admission of liability.

Speaking after the compensation claim for a lack of medical care at a Birmingham hospital had been resolved, Carol Askew told her local press:

“We are bitterly disappointed that the Trust did not accept responsibility for the failings in his treatment. After he suffered the brain injury in early 2010, Ross needed 24-hour care as he wasn’t able to move independently or look after himself. We are devastated that he was taken away from us so suddenly and it is incredibly difficult for us to come to terms with.”

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Liability Admitted in Claim for the Negligent Treatment of a Broken Leg

An NHS Trust has admitted liability in a claim for the negligent treatment of a broken leg made by a woman who suffered years of unnecessary pain.

In August 2012, twenty-five year old Sally Marsh from Diglis in Worcestershire broke two bones in her right leg when landing awkwardly while playing soccer for her local women´s football team. Sally was taken by ambulance to Worcester Royal Hospital, where her leg was put into a full leg cast.

Sally was discharged being told it was okay for her to put weight on her right leg. The full leg cast was replaced with a half leg cast after eight weeks, and then Sally wore the half leg cast for a further six weeks. When the half leg cast was removed, it became apparent that Sally´s broken leg had not healed properly.

Sally went to see an orthopaedic specialist who informed her that the bone in her leg had set at a nineteen degree angle. The specialist said that Sally would need an operation to align her bones properly but, due the NHS Trust constantly postponing the operation, Sally did not undergo surgery until nine months later.

In the intervening period, Sally experienced a lot of pain from her leg. She had to take time off from work and was unable to pursue her usual pastimes and hobbies. When the operation to realign the bone in her leg eventually took place, Sally had a metal cage fitted to her leg to help support it, but the cage led to the development of an infection and Sally had to take repeated doses of antibiotics.

After seeking legal advice, Sally made a compensation claim for the negligent treatment of a broken leg against the Worcester Acute Hospitals NHS Trust. Sally alleged in her claim that she should not have been discharged so early after being admitted to hospital, that there was a failure by the hospital to appreciate the need for prompt surgical intervention, and that the failing of the hospital led to avoidable nerve damage and a deformity in her right leg.

After conducting an investigation, the Worcester Acute Hospitals NHS Trust acknowledged failings in the standard of care Sally had received. The NHS trust admitted liability for Sally´s injuries and her solicitors are now negotiating a settlement of her claim for the negligent treatment of a broken leg.

After the admission of liability had been received, Sally commented: “It’s a relief that at least now the NHS Trust has admitted that it made mistakes and my legal case can move to the next stage. I just hope that no one else has to suffer as I have in the future.”

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Regulator Ban Could Lead to Silimed Implant Compensation Claims

The ban on sales of Silimed silicone implants could result in Silimed implant compensation claims if contamination found in Brazil is also found in Europe.

Earlier today, it was reported by Reuters that the Medicines and Healthcare Products Regulatory Agency (MHRA) has suspended sales of Silimend silicone implants following the discovery of contamination in the company´s Rio de Janeiro manufacturing plant.

The MHRA and other European regulators are testing products already in Europe to determine whether the contamination is a recent event or if has affected the quality of implants already shipped from Brazil. The MHRA has advised the UK healthcare industry not to use Silimed implants until further notice.

The suspension of Silimed implant sales comes five years after French authorities discovered that Poly Implant Prothèse (PIP) was not using medical-grade silicone in its breast implants – a discovery that led to the closure of the company and a jail sentence for its president, Jean-Claude Mas, in 2013.

The MHRA´s suspension of Silimed sales may ultimately be unfounded, but the regulator is taking no chances after being criticised by the Commons Health Committee in 2012 for failings in the way that the PIP breast implant scandal was handled and for a lack of communication.

No Evidence Yet to Support Silimed Implant Compensation Claims

As the investigation into possible contamination is only a few hours old, there is no evidence yet to support Silimed implant compensation claims. The MHRA is advising people who have concerns about their Silimed implants is to contact their implanting surgeon or clinic.

According to the manufacturers, any potential health issues will be limited to the European Union; for, although products manufactured by Silimed are also sold under license in the US by Sientra Inc, an ongoing clinical trial in the US has yet to disclose any problems with the implants.

People who have already been diagnosed with an injury or a health condition due to a Silimed implant should speak with a solicitor about making Silimed implant compensation claims. Your solicitor will be able to advise you of the latest situation regarding the MHRA´s suspension of Silimed sales and the ongoing investigation into the safety of the implants.

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NHS Clinical Negligence Claims costing more than £1 Billion per Year

More than £1 Billion was paid out to settle NHS clinical negligence claims in 2014/15, and the NHS Litigation Authority expect that figure to rise next year.

The cost of NHS clinical negligence claims was revealed in the NHS Litigation Authority´s annual report and is attributed to several factors, significantly – according to Chief Executive Officer Helen Vernon – that more people are being treated on the NHS.

The Authority says that it plans to work with the NHS to reduce litigation costs and to improve safety and learning, although – it was claimed in the report – that an increase in the number of reported medical incidents could be due to a “positive reporting culture”.

The amount of money that is being spent on resolving NHS clinical negligence claims has attracted a lot of criticism – not least from Dr Michael Devlin from the Medical Defence Union, who claims that the amount paid out in settlements could have funded over eight million MRI scans.

Dr Devlin blamed the “unsustainable cost” of private sector health and social care packages that claimants receive, and said: “Today´s figures only accentuate the need for a complete rethink of personal injury law”.

However, government plans to cap the value of NHS clinical negligence claims and the legal costs associated with litigation have come under attack by solicitors and consumer rights groups, who argue that limiting the amount of money solicitors can charge will restrict patients´ access to justice.

Jonathon Wheeler – President of the Association of Personal Injury Lawyers (APIL) – said that it was wrong to blame lawyers for the cost of NHS clinical negligence claims when the fault lay with the government for failing to provide an acceptable standard of healthcare.

Mr Wheeler also had words to say about the way in which NHS clinical negligence claims are handled by the NHS Litigation Authority. He said:

“There are cases where the NHS needs to admit liability straight away and make an interim payment and then put in place some meaningful rehabilitation. If the NHS did that, then patients would get better more quickly, the damages are not going to be so much and the legal costs are also going to be reduced.”

The publication of the NHS Litigation Authority annual accounts will strengthen calls for a radical overhaul of how NHS clinical negligence claims are handled, but Mr Wheeler commented: “The NHS LA are their own worst enemy because they won’t recognise when mistakes have been made, driving up legal costs on both sides.”

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Settlement of Compensation for Locked-In Syndrome to be Decided by Judge

A judge will decide how much compensation for locked-in syndrome should be awarded to a man from Cork after an agreement could not be reached during a court hearing.

In November 2001, Eoin O´Mahony was admitted to the Cork University Hospital for brain surgery following complaints of headaches. An initial procedure on 23rd November to reduce pressure on his brain failed to resolve the problem, and Eoin underwent a second operation on 30th November to partially remove a tumour that had been discovered.

Unfortunately, Eoin lapsed into a coma on 1st December due to brain damaged caused by the negligence of his surgeon. When Eoin recovered, he was diagnosed with locked-in syndrome – a condition in which a patient is aware, but cannot move or communicate verbally due to complete paralysis of nearly all voluntary muscles in the body.

The Cork University Hospital conceded liability for Eoin´s brain injuries in 2009, and interim payments of compensation for locked-in syndrome amounting to €4.1 million have been paid to his parents in lieu of a structured periodic payment system being introduced. As legislation has not been passed for periodic payments, Eoin´s parents had asked for a lump sum payment to finish the thirteen years of litigation they have endured on their son´s behalf.

At the High Court in Dublin, Mr Justice Michael Moriarty conceded to their request, but after nineteen days of hearings – during which Eoin´s future needs were discussed – no agreement could be reached between Eoin´s legal team and the State Claims Agency. Mr Justice Michael Moriarty briefly adjourned the hearing after instructing the parties that the final settlement of compensation for locked-in would be between €10 million and €10.1 million and asked them to reach agreement.

When the hearing reconvened, Judge Moriarty was told that Eoin´s family was willing to split the difference, but the State Claims Agency would not agree to the arrangement. The judge said that he would make the final decision in October, and instructed the State Claims Agency to make a further payment of €800,000 to Eoin´s family to cover their medical and care expenses in the intervening period.

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Family Settle Claim for a Wrongful Death due to a Failure to Monitor Oxygen Levels

A family from Wolverhampton has settled its claim for a wrongful death due to a failure to monitor oxygen levels for an undisclosed amount.

On 25th June 2011, Hilda Seagrave (74) from Wolverhampton in the West Midlands was admitted to the New Cross Hospital after suffering a fall in her home. Hilda – who was already being treated with oxygen therapy for a clotting disorder that was affecting her lungs – was diagnosed with a spinal injury and placed in a ward.

Overnight, Hilda was given an oxygen cylinder, rather than being connected to a piped oxygen supply; and, when the oxygen in the cylinder ran out at around 6:00am in the morning, Hilda died from a cardiorespiratory arrest.

An inquest into Hilda´s death discovered multiple failings with the standard of care Hilda received, after which her family sought legal advice and made a claim for a wrongful death due to a failure to monitor oxygen levels.

A subsequent investigation by the family´s solicitor found that Hilda should have been admitted to a high dependency unit because of her existing condition, that she should have been provided with a continuous supply of oxygen and been monitored hourly.

Despite there being substantial evidence to support the claim for a wrongful death due to a failure to monitor oxygen levels, the Royal Wolverhampton Hospitals NHS Trust contested responsibility for Hilda´s death; but, when court proceedings were issued, agreed to an out-of-court settlement without an admission of liability.

Speaking after the settlement of the claim for a wrongful death due to a failure to monitor oxygen levels Hilda´s daughter Sue said, “We trusted that staff caring for our mother whilst she was in hospital would give her the very best quality of care available and to discover after she had passed away that her oxygen supply had run out during the night and not replaced is simply unacceptable”.

“We are disappointed that the Trust has not accepted responsibility formally for what happened to our mother – I hope that after what happened to my mother, all staff at the hospital receive all the training they need to ensure that these mistakes can never happen again.”

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MSP Requests Review of Compensation for C-diff Infection Families

The Scottish Parliament has heard calls for a review of the amount put aside to pay the families of victims – who died from medical negligence – compensation for a C-diff infection.

Jackie Baillie – the Dunbartonshire Member of the Scottish Parliament – raised the question of compensation for a C-diff infection the day after the release of Lord MacLean´s report into the tragic deaths of thirty four patients from Clostridium difficile related infections at Dunbartonshire´s Vale of Leven Hospital between 2007 and 2008.

Clostridium difficile (C-diff) is bacteria which live harmlessly in the gut of one-in-ten adults until the gut flora is disturbed – for example by a course of antibiotics. Thereafter it can multiply quickly and produce poisonous spores which cause diarrhoea in healthy people, and far more serious conditions in patients with compromised immune systems.

Lord MacLean´s report cited substandard nursing care and deficiencies in medical staffing as the primary factors which facilitated the spread of airborne spores and resulted in the infection of 143 patients. However, he added that the death of thirty four patients at the hospital should ultimately be attributed to governance and management failures by the NHS Greater Glasgow and Clyde Health Board.

The outbreak of C-diff – Lord MacLean commented – was also attributable to the inappropriate prescribing of antibiotics such as amoxicillin and cefalexin – these drugs killing the healthy gut bacteria which would have prevented the development of the C-diff bacteria. His report concluded “such personal suffering should never be allowed to happen again”.

The NHS Greater Glasgow and Clyde Health Board has already acknowledged that its failings were responsible for the death of thirty four patients from illnesses related to Clostridium difficile,  A fund of £1 million has been put aside to pay compensation for the C-diff infection fatalities to the families of the victims. However, at the Scottish Parliament, that amount was brought into question.

Clearly emotional, Jackie Baillie – who represents many of the families struck by the tragedy – said that the amount of compensation for the C-diff infection families was inappropriate in relation to the £10 million that had been spent conducting the investigation into the outbreak at the Vale of Leven Hospital and producing Lord MacLean´s report.

Mrs Baillie called on the Scottish Government Cabinet Secretary for Health, Wellbeing and Sport – Shona Robison – to review the amount of compensation for C-diff infection families, claiming that “justice has not yet been done”.  Mrs Robison replied by saying that detailed discussions were ongoing and that she agreed with her colleague that those hurt by acts of clinical negligence “should be adequately compensated”.

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DePuy Hip Replacement Compensation Settlement – US Jury Awards $8.3 Million

The first recalled ASR hip replacement claim to be heard in court in the USA has resulted in the jury awarding a former prison officer an $8.3 million DePuy Hip replacement compensation settlement.

Loren Kransky, aged 65, from South Dakota made the recalled hip replacement claim for compensation after his doctor attributed certain health issues he was suffering to metal ions which had entered Kransky´s blood from a faulty ASR hip replacement implant implanted in 2007.

His compensation claim for a DePuy hip settlement was moved forward to be heard in the Los Angeles Superior Court, as Kransky also suffers from diabetes, heart disease and kidney cancer, and according to Californian law preferential treatment is given to claimants who are dying.

Legal representatives for Kransky argued that elevated levels of cobalt and chromium released by friction within the faulty hip replacement had resulted in damage to bones and soft tissues and had resulted in their client needing a further hip replacement.

DePuy (Johnson & Johnson) argued that there was no medical agreement on what levels of metal being released into the system caused damage to patients and contested the claim on the grounds that Kransky´s pain was due to his pre-existing illnesses.

Mr Kransky’s claim for a DePuy Hip replacement compensation settlement had asked for major punitive damages – claiming that DePuy had failed to adequately warn of the risks associated with the ASR XL Acetabular hip replacement device.

Despite this, the jury at the Los Angeles Superior Court ruled that the company did not act with malice – stopping Kransky from being awarded punitive damages – but agreed with his solicitors that the hip replacement system was faulty and that the “black pieces of metal [that] flaked off the implant and lead to a type of poisoning that could have killed him”.

At court the jury awarded Loren Kransky $8 million for his pain and suffering due to a faultyDePuy Hip replacement plus a further $338,000 to cover his medical costs. DePuy will appeal the award, as the precedent of $8 million in compensation for pain and suffering could be greatly increased for claimants who do not have a terminal illness.

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Widower Awarded Compensation for Failure to Treat a Postpartum Haemorrhage

A man has been awarded €850,000 compensation for the failure to treat a postpartum haemorrhage that resulted in the death of his wife.

Padraic Flanagan (43) from Castlebar in County Mayo made the medical negligence claim following an inquest into the death of his wife – Evelyn – who died while giving birth to the couple´s second child in October 2007 at the Mayo General Hospital.

An initial post-mortem into Evelyn´s death concluded that it was attributable to an amniotic fluid embolism. However, Padraic criticised the findings of the post-mortem, and claimed that the deterioration in his wife´s condition after the birth of their child was due to a postpartum haemorrhage of Evelyn´s uterus which was not detected or adequately treated.

The subsequent inquest into Evelyn´s death returned a verdict of death by medical adventure. After hearing the coroner´s verdict, Padraic sought legal advice and claimed compensation for the failure to treat a postpartum haemorrhage against the Mayo General Hospital and Evelyn´s consultant obstetrician, Dr Murtada Mohamed.

Both the Mayo General Hospital and Dr Mohamed denied their liability for Evelyn´s death, but her widower persisted with his legal action, and court proceedings were issued against the alleged negligent parties. However, shortly before the claim for compensation for the failure to treat a postpartum haemorrhage was due to be heard in court, the Health Service Executive admitted that Evelyn´s death could have been prevented with greater care.

As no agreement could be negotiated on how much compensation for the failure to treat a postpartum haemorrhage Padraic was entitled to, the case proceeded to the Dublin High Court for assessment of damages. After hearing the circumstances of Evelyn´s death, Mr Justice Michael Peart awarded Padraic €850,000 compensation against the Health Service Executive. The claim against Dr Mohamed was struck out.

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