Written evidence submitted by Dr Gillian Yeowell, Dr Sue Greenhalgh OBE and Prof James Selfe (NLR0010)
1. What is the impact of the current cost of litigation on the financial sustainability of the NHS and the provision of patient care?
1.1 Through a Chartered Society of Physiotherapy research grant we are currently investigating Cauda Equina Syndrome (CES) and litigation1. The total cost of CES to the NHS and wider society is vast. The GIRFT report highlights that 23% of litigation claims for spinal surgery in England relate to CES2. Between 2008 to 2018, NHS Resolution received 827 claims for incidents of CES. Of these, 340 were settled with damages. This has cost the NHS £186,134,049.
1.2 Our research has found that claims are settled out of court even where clinical negligence has not been found1. This pragmatic decision is made to avoid going to court, which could incur further cost. It appears that the main beneficiaries of the current system are the legal profession with the NHS paying vast amounts of tax payers’ money to cover legal costs with relatively little money going to the patient.
1.3 We have found, that the perceived threat of litigation is promoting defensive medicine rather than encouraging best practice. Litigation risk is driving defensive practice with over investigation and low thresholds to onward referral (especially seen within the new First Contact Practitioner roles). This practice is costly and causes unnecessary anxiety in patients and their families. Furthermore, the negative impact of litigation on clinicians has been highlighted by our study with potential impacts on staff future practice, retention, confidence and well-being.
1Yeowell G et al. (2021) Cauda Equina Syndrome and litigation. https://www.mmu.ac.uk/research/research-centres/hpac/projects/CES-litigation
2Hutton, M. (2019). Spinal services. GIRFT Programme National Specialty Report, 46-50.
2. What are the key changes the Government should consider as part of its review of clinical negligence litigation? In particular:
2.1 What changes should be made to the way that compensation is awarded in clinical negligence claims in order to promote learning and avoid the same problem being repeated elsewhere in the system?
2.1.1 Our research identifies the need to share experience and a need to be prepared to learn from these experiences. Under the current arrangements it is very difficult for NHS trusts to be able to share experiences. Therefore, whilst one trust may learn from reflection on the litigation incident this learning is then not shared with other trusts, who may repeat the same mistakes. A more strategic approach that enables effective sharing of learning across and throughout the NHS in all four home nations is required.
2.2 How can clinical negligence processes be simplified so that patients can receive redress more quickly?
2.2.1 We have found that for some, an apology to the patient, or an explanation of what has happened is needed early in the process. Some patients would be satisfied with this and would not pursue a claim for clinical negligence. Therefore, we recommend mediation takes place early in the process.
2.2.2 In our study we found that the extended period for claims to be resolved is very stressful to the clinician. It is apparent that there is no formalised system of notifying the clinician of a claim or its progress. For example, some clinicians were notified via a letter to their home address with no prior warning, some via a work email with no prior warning, whereas for others, it was via their line manager/or equivalent. How they were notified, impacted on their stress and how they dealt with the claim. Therefore, we recommend a formalised, clear process to:
- inform the clinician they have a potential claim against them
- the progress of that claim
- the outcome of the claim
2.3 How can collaboration between legal advisors be strengthened to encourage early and constructive engagement between parties?
2.3.1 Round table meetings and mediation, using a no blame approach, needs to be adopted.
3. To what extent does the adversarial nature of the current clinical negligence system create a “blame culture” which affects medical advice and decision making?
3.1 A no blame culture was highlighted on many occasions in our study. Some patients only wanted an apology so early intervention, as highlighted previously, could prevent a full claim.
3.2 The adversarial nature of the clinical negligence system perpetuates the ‘blame culture’. As a response to this, we found some clinicians had adopted a defensive practice which involved: More detailed note taking, lower threshold for referral to another department and to order investigations.
3.3 Other impacts on the clinician were: Taking additional insurance cover; Change of career; Changed speciality e.g., moved from a musculoskeletal service to falls service; Changed role to a lower grade; Changed clinical setting e.g., primary care to secondary care; Changed employer/ employment status; Reduced working hours; Decided to retire/ semi-retired.
4. How important is it that any clinical negligence system encourages lesson learning and commitment to change as the result of any action?
4.1 This is crucial. An open, honest environment of sharing learning with a no blame approach to learn lessons is required. Learning needs to be across multiple boundaries i.e. professional/organisational/in primary and secondary care/ private & NHS organisation /
inside and outside the healthcare setting. Furthermore, we need to work with legal stakeholders.
5. What changes should be made to clinical negligence claims to enable a move away from a blame culture and towards a learning culture in the NHS?
5.1 Learning from litigation needs to be embraced not ignored. We need to be open and honest to move forwards
6. How can the Healthcare Safety Investigation Branch work to improve short term responses to patient safety incidences and therefore reduce the number of those who are forced to pursue litigation as a means of obtaining non-financial remedies?
6.1 The HSIB have highlighted in their Timely detection and treatment of Cauda Equina Syndrome report3, the need for clear communication and safety netting advice for patients. Safety netting work already carried out by Greenhalgh et al4, cited in their report, has been shown in clinical practice to work well and is now promoted in National and International guidelines. This clear approach to safety netting should be considered as mandatory in all high-risk conditions such as malignancy, sepsis, and spinal infection. We have previously highlighted expert knowledge can be ‘hidden’ in professional silos, therefore more interdisciplinary research and expert collaboration across boundaries including with patients could contribute further to strengthening the safety netting approach.
6.2 Reports such as the international framework for red flags for potential serious spinal pathologies (Finucane et al 2020)5 and HSIB report on Cauda Equina Syndrome (CES), should be produced for all conditions with a high litigious profile and would be of benefit in the clinical setting. Facilitation to standardising approaches across all settings, limiting variation and addressing weaknesses identified would be of benefit. The CES cards cited are a good example. Approaching conditions with a high litigious profile first would be of importance. The findings of these reports, with a check list of strengths to incorporate in practice or weaknesses to avoid, should be hosted in an easily accessible location be provided free of charge and disseminated widely.
6.3 We need to consider how joined up processes are at the NHS Trust level, and are we proactive with the complaints procedure, incident reporting and Duty of Candour stage. Could more be done earlier?
6.4 Finally, what can we learn from patients? What does hindsight tell them would have helped? What can we learn from patients to help in the short term?
3HSIB (2021) Timely detection and treatment of Cauda Equina Syndrome. Available: https://www.hsib.org.uk/investigations-and-reports/timely-detection-and-treatment-of-spinal-nerve-compression-cauda-equina-syndrome-in-patients-with-back-pain/
4Greenhalgh, S., Truman, C., Webster, V., & Selfe, J. (2016). Development of a toolkit for early identification of cauda equina syndrome. Primary health care research & development, 17(6), 559-567.
5Finucane, L, Greenhalgh, S, et al. Selfe, J. (2020). International framework for red flags for potential serious spinal pathologies. journal of orthopaedic & sports physical therapy, 50(7), 350-372. Endorsed by International Federation of Orthopaedic Manipulative Physical Therapists (IFOMPT) a subgroup of the World Confederation for Physical Therapists (WCPT). JOSPT Vol 50 (7) pp 350-372 (Translated into Portuguese 2020 & French 2021)
7. What legislative changes would be required to support these changes?
7.1 The legal team need to consider the role of the expert witness and who this should be. NHS roles are undergoing rapid change, with for example the development of the first contact practitioner (FCP) role6. Therefore, healthcare professionals are now working in very different contexts. As such, the traditional view of who should act as the expert witness may no longer be appropriate. For example, a senior physiotherapist who has never worked in a FCP role should not act as an expert witness in a case against an FCP, nor should a neurosurgeon (both of which are real life examples from our research of physiotherapists who were in receipt of a litigation claim).
7.2 It is important to note due to the changing roles of staff working in the NHS, litigation is now affecting many more healthcare professions not just Doctors, midwives and nurses. This is now everybody’s business.
6Greenhalgh, S., Selfe, J, Yeowell, G., (2020). A qualitative study to explore the experiences of first contact physiotherapy practitioners in the NHS and their experiences of their first contact role. Musculoskeletal Science and Practice, 50, p.102267.