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  • Overview

    Jessica Hanrahan, a Paralegal in our Clinical Negligence and Personal Injury team shares her views on the news that the NHS Complaints Service has been found it to be most inadequate following a review by the Health Service Ombudsman. 

    Article by Jessica Hanrahan

    I was troubled to read in the news last week that 73% of cases investigated by the Health Service Ombudsman, where the NHS Trusts had found there to be “no failings”, were found to in fact have had “clear failings”.  Just as distressingly, in over half of complaints reviewed by the Ombudsman, the hospital investigations had been led by a doctor who was not completely independent, or in other words was as closely affiliated or involved in the care that was being complained about.

    Working day-to-day in clinical negligence claims, I am unfortunately not as shocked as I should be to read this; it is all too familiar.  At Thomson Snell & Passmore LLP we regularly see clients who have had the most appalling service when making an NHS complaint.  Many of our clients wait for months or sometimes years to get a response.  Delays are followed by excuse after excuse for the lack of response, despite the fact that under the NHS complaints scheme patients are meant to have a response within 25 days.

    Delay tactics like this can be incredibly damaging, for the patient’s emotional wellbeing, but also because if they should choose to bring a claim in clinical negligence they have 3 years from the date of the negligence, or the date that they knew or ought to have known that negligence had occurred, in which to do so.  It is not uncommon for NHS delays in responding to take so long that the patient misses their window of opportunity for bringing a claim.

    One of our current clients complained to the NHS after her partner died following keyhole oesophago-gastrectomy surgery at Maidstone & Tunbridge Wells NHS Trust.  In her case, her complaint was responded to by the surgeon who had undertaken the surgery in question!  His brief one page response did little to cover her concerns and simply explained what had caused his death.  We are currently still investigating this case but the upper gastro-intestinal unit has been reviewed by the Royal College of Surgeons for this type of surgery, and has now ceased to perform this surgery permanently.  Needless to say the NHS complaint response had not highlighted anything which would have indicated failings to our client.

    Worse of all, we have witnessed patients who are faced with letter after letter, denying any form of wrongdoing… and yet after months or even years of investigations and pushing by our clinical negligence lawyers, the NHS will finally admit to negligence.

    Understandably this puts the patients and their families through additional heartache and psychological stress; not forgetting that many of these patients are ill.  Many of our clients inform us that they do not look to bring a claim in clinical negligence because they want some money, but purely because they feel they need to get to the bottom of what happened, and to get some form of apology from the NHS; something which is so often lacking in their NHS complaint responses.

    One of our clients was willing for us to share his experiences of the NHS complaints service. 

    Susan’s story

    Mr Weller came to Thomson Snell & Passmore LLP in May 2013 following the death of his wife, Susan, in October 2012 at Medway Maritime Hospital in Kent.

    Susan had undergone surgery for colon cancer in 2011 but unfortunately this had come back.  On 12 October 2012 she underwent an operation to remove the recurrent tumour.  During the surgery a large section of Susan’s bowel had to be removed.

    From day one following her surgery Susan started to show worrying symptoms including extreme thirst, nausea, abdominal pains, bloating and high temperature, vomiting and diarrhoea.

    On 20 October her vomiting restarted and so she was offered a nasogastric tube, which siphons fluid out of the stomach and lowers the risk of choking on vomit; in effect protecting the airway.  On attempting to fit the nasogastric tube Susan’s throat was scratched and became very sore.  After that time Susan did not want to try again to have a tube fitted.

    Sadly on 21 October Susan had a cardiac arrest, having choked on vomit, and passed away.  A post mortem was performed on 24 October and the pathologist found that there had been a breakdown of the bowel in the area where Susan’s surgery had been performed.  He recorded that the cause of death was peritonitis.

    Mr Weller had a meeting with the surgeon and the PALs team in February 2013 to discuss what had happened.  During the meeting the surgeon told Mr Weller that Susan’s death had been caused as a result of her refusal to have a nasogastric tube fitted, causing her to inhale the vomit.  The surgeon also made comments using the level of staffing on the wards as an excuse, saying this makes the work of the doctors and nurses harder.  He made it clear that he did not agree with the findings of the pathologist, which suggested that the hospital had failed to pick up Susan’s symptoms of peritonitis.

    Mr Weller was not happy with the response he had got from the meeting and so made a formal written complaint to the hospital.  A response was received in April 2013, and the hospital continued to insist that they did not agree with the post-mortem findings.  They wrote that

    “It is not felt that her death was the result of incompetence or misguided faith in the Clinical Team, whom we believe treated her appropriately and diligently.” 

    Mr Weller instructed Jennifer Waight at Thomson Snell & Passmore LLP in May 2013 in order to bring a claim for clinical negligence, as he felt so deeply unhappy with the hospital’s response.  We obtained copies of Susan’s medical records and contacted the local coroner who agreed to hold an Inquest into the cause of Susan’s death.

    The Inquest was held on 8 and 9 June 2015.  In their submissions and evidence from their doctors, the hospital trust continued to deny any wrongdoing had taken place.

    The Coroner had instructed an independent surgeon to review Susan’s treatment in the week preceding her death.  The independent surgeon was of the view that there were a number of missed opportunities to recognise and treat the abdominal sepsis and bowel obstruction; especially in light of the symptoms she had been having, and which the staff had been recording.

    Most shockingly he found that, although Susan should have been nil by mouth because she was at a high risk of developing an obstruction of the intestine, she was allowed to consume over 2 ½ litres of fluid the day before she died, which led to her choking.  This had not been disclosed by the trust in their response to Mr Weller’s concerns.

    Following the overwhelming evidence at the Inquest, the trust admitted liability and the claim was later settled for £30,000.

    The duty of candour and who is really at fault for wasting NHS money?

    The NHS recognises that it has a duty to inform and apologise to patients if there have been mistakes in their care that have led to significant harm”.  However it is clear that this duty is all too often not being taken seriously, and it is unfortunately the patients and their families who suffer as a result.

    We hear all too often complaints that the NHS resources are being used up on clinical negligence claims, however we never hear about how the NHS wastes its own funds by failing to hold up their hands and admit their failings at an early stage.  Often patients are not looking to bring a claim, they simply want an apology.  It is only when an apology is lacking that they come looking to bring a claim.  Even if a claim is sought, if an admission of liability is given by the NHS Trust at an early stage, the litigation costs would be significantly reduced.

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