“Any fool can know. The point is to understand “Any fool can know. The point is to understand.” Albert Einstein an insight into key failings that may result in your involvement in clinical litigation or an inquest Alison Kelly, Head of Litigation

Issues from litigation / inquests Do’s Always document why you have done something/decided to do nothing, when acting outside usual protocols. Decision not omission. Only undertake those roles that you are trained to do. You are personally responsible for doing so. Treat each patient as an individual (re. Montgomery). Document, sign (stamp) and date. You are unlikely to recall 6+ weeks (complaint), 6+ months (inquest) or 3+ years (litigation) why you did something. Definite don’ts Never alter an entry in the healthcare records. It is a criminal offence. Do no imply unsubstantiated professional criticism of another’s practice within h/c records. It is for them to explain their own practice. Do not act outside your own professional remit or promise what is not within your ability to offer. It may resolve an issue for you now but will undoubtedly contribute to greater issues for others later.

Case re A The case was investigated as a serious incident. A sequence of events contributed to the unnecessary death of a patient. Because the death was unexpected it was referred to the Coroner. Witnesses were summoned to an inquest. Issues relating to professional competencies and corporate responsibility came into play. There is potential for a legal claim.

Morecombe Bay Investigation: https://www Established by the Secretary of State for Health (September 2013) following concerns over a number of serious incidents in the maternity department at Furness General Hospital. The report concluded that the unit was dysfunctional and that serious failures in care led to unnecessary deaths of mothers and babies.

All health care – everywhere – includes the possibility of error All health care – everywhere – includes the possibility of error. The great majority of NHS staff know this and work hard to avoid it. They should not be blamed or criticised when errors occur despite their efforts. But in return, all of us who work for the NHS owe the public a duty to be open and honest when things go wrong, most of all to those affected, and to learn from what has happened. This is the contract that was broken in Morecombe Bay. Dr Bill Kirkup, Investigation Chairman

A flippant comment can sometimes lead to so much more “I am afraid he is quite elderly, we cannot expect too much” “I am a consultant; I am expected to be arrogant” “You are on the wrong ward; what do you expect” “I am not going to say sorry – I will only get sued” Each of the above contributed to the patient / family involved, bringing complaints against those trusts, in one case a claim was instigated. This led to the involvement of Expert nursing and medical reports, a forensic review of the healthcare records and settlement of damages on causation. It was shown that the care on the (surgical) ward was not as effective as it might have been on the medical ward. The legal test: “on the balance of probability” or “more likely than not”.

Clinical Negligence Scheme for Trusts Administered by the NHS Litigation Authority (NHSLA), an independent trust. NHS health care trusts contribute to this pooling scheme. All payments for the settlement of clinical negligence claims (including costs) are met by the Scheme. Contributions are based on claims history, services provided, staffing levels (numbers and grades) etc. Risk management, evidence of duty of candour amongst other measures are being considered for inclusion. The CQC may have a role in developing “key lines of enquiry”. Trusts take vicarious responsibility for the actions of their staff. Staff must adhere to their professional guidelines and the remit of their role and assist in the investigation of a claim.

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