The importance of medical negligence claims

11th October 2018

By Hannah Ashcroft, Solicitor in the Medical Negligence team

I, along with the nation, have been thoroughly gripped by the best-selling book “This is Going to Hurt: Secret Diaries of a Junior Doctor” by Adam Kay.

The book, for those who have not read it, is an entertaining and humorous account of Kay’s years as a junior doctor albeit whilst delivering an important message about the frontline NHS.

It is clear that Kay was incredibly dedicated and committed to both his patients and the NHS. We hear about the lengths Kay went to for his patients and that it is a vocation, rather than “a profession you go into to satisfy the dollar signs behind your eyes”. In particular, it was apparent to me that Kay put caring for patients above everything else.

It therefore surprised me that Kay, when referring to a medical negligence claim against the Trust arising from care he delivered, described the Claimant lawyers as “solicitors of the ambulance-pursuing ‘no win, no fee’ persuasion”. Kay describes the impact of the claim as “the anxiety and guilt mounted onto an already stressful working life, the unfairness of being accused of being terrible at my job and the fear that maybe I was terrible at my job” and expresses frustration that the Trust settled the case out of Court.

I have no doubt that Kay felt the way he describes, given his conscientious nature and dedication to patient care and safety. Whilst Kay maintains that his actions were not negligent, mistakes do happen. It is not surprising that mistakes take place given the working conditions Kay describes on the frontline. For example, Kay states “the system runs on skeleton staff and, on all but the quietest shifts, relies on the charity of doctors staying beyond their contracted hours to get things done. It would be against everything you stand for to knowingly compromise patient safety, so you don’t.” Examples include Kay finishing a night shift only to go straight onto a new posting that started an hour before his night shift finished.

Whilst Kay does not go into too much detail about the circumstances in which the Claimant’s injury occurred, I envisage he is being too hard on himself given the conditions in which he was working at the time. He reminds us “in the last 3 years, neurosurgeons in this country have drilled holes in the wrong side of patients’ skulls 15 times”. One has to question how many hours those surgeons had been working for at the time their mistakes were made. Whilst all medical professionals owe their patients a duty of care, this is why the NHS Trust is, and should be, vicariously liable for the actions of the doctors they employ in recognition that it is the Trust that ultimately has overarching responsibility and control. We hear of Dr Kay’s frustrations in this regard with an “NHS on its knees”, “the vicious hours”, “the bureaucracy”, “the understaffing” and his disdain for the Secretary of State for Health.

As a Claimant lawyer specialising in medical negligence at Fletchers Solicitors I am acutely aware of the current issues with the NHS and consider my interests are entirely aligned with Kay’s interests. When claims are brought against NHS Trusts, this is simply to obtain appropriate compensation for patients when mistakes are made such that they have suffered an injury, the effects of which may be permanent or may have significant impact on their lives. Many disagree with our current legal system that allows the NHS to be sued yet we do not hear the same disputes about companies being sued. The NHS are no less accountable and mistakes are often made when bureaucracy and cost saving is put before patient safety.

Without medical negligence claims, Trusts simply would not be held accountable for their actions and we would see a significant deterioration in patient safety, and likely working conditions for Trust employees such as Kay too. It has always been my view that doctors and lawyers all want the same thing – to identify mistakes and learn from them for the future so that we can continually improve patient welfare in line with the pioneering medical advancements our country is so fortunate to have access to.

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