Learning from mistakes

The NHS Litigation Authority, now known as NHS Resolution (NHSR) is the body that manages claims for negligence against NHS member organisations.

After over a decade of managing these claims and obtaining data on all avoidable injury and deaths sustained, standards should be improving.

All healthcare professionals have a Duty of Candour; an obligation to be open and honest with those in their care when things go wrong. However, a Duty of Candour only works if staff report errors and failings. In most successful claims we bring, there has been a complaint or an obvious untoward outcome yet we see tiny numbers of Duty of Candour apologies and explanations.

There is much rhetoric about how fear of compensation claims prevented honesty within the NHS staff. However the review into maternity care at Shrewsbury and Telford NHS Trust is highlighting deaths that must not have been the subject of litigation, otherwise surely NHS Resolution would have had them all bundled together in the initial review. In fact, Jeremy Hunt was aware of a comparatively small number of deaths. The true number is frightening.

Whilst this is hopefully a one off, there needs to be an inquiry of some sort into how NHS Resolution has missed so many of these hot spots. There must be spikes in claim numbers from certain trusts, yet there seems to be no system to identify problems early on, to learn from claims and mistakes (as by definition they are all avoidable) to improve patient safety. The side effect of that would be to reduce claim numbers, reduce the cost to the NHS of such claims and to reduce the amount spent on lawyers (for both sides).

Most of my generation of lawyer came into Clinical Negligence when legal aid was widely available. It was a vocation not a business. We believed that identifying the errors would lead to improvements and that claim numbers would drop. When the Labour Government of Tony Blair brought in a gatekeeper to deal with all NHS claims centrally, it seemed like that should happen.

The reality however is that this has not been achieved. Claims are not the problem. They are the symptom. Tragedies like this are avoidable and in this age of big data they are incredibly hard to miss. Put simply, trends have not been identified and addressed.

Instead of viewing claims made by bereaved parents as an inconvenience and societal ill, we should be asking why these flags are going unnoticed by the agency set up to watch them.