How safe is the emergency department?

NHS Resolution reviews Emergency department claims

As part of their ongoing reviews, NHS Resolution- NHSR (in essence the department in the NHS dealing with litigation claims) has published a series of new reports detailing cases and events that occur in emergency departments.

Their hope is that they can identify common issues with a view to reducing incidents of negligence.

Clinical negligence claims associated with emergency departments in 2020 and 2021 accounted for 11% of the total number of claims that were notified. They also account for 5% of the total estimated value of all claims, the third largest group of claims.

NHSR looked at three categories of claims: (a) high-value claims, those in excess of £1 million, and fatality claims; (b) missed fractures; and (c) hospital-acquired ulcers and falls. The valuations of the claims varied significantly but these were the most common incidents.

High-Value Claims

In the high-value claims, missed diagnosis was a key theme common to all of the incidents and was particularly pertinent for spinal and cerebral injuries. With the fatality claims, there tended to be a misdiagnosis. These would certainly be areas of practice in which claimant clinical negligence lawyers are commonly consulted.

Interestingly in about half of the high-value claims, there was evidence of an incident report and a complaint but only 12.5% of the cases had actually been reviewed in line with the recommended serious incident process. In short, the opportunity to learn from them had been lost somewhat.  Despite the assurances of the NHS that they will review serious incidents, this clearly had not occurred.

The other issue was that there seemed to be a lack of documented complete examinations (particularly neurological) and in some cases a failure to perform the right diagnostic test. There are also of course several cases where the diagnosis was delayed. Those delays then had serious consequences as many critical conditions are time-sensitive, needing a senior review and referral to appropriate specialists.

These were claims that arose pre-Covid although their ultimate settlement may have been recent. Therefore, although the assumption might be that Covid and resulting staff absence might be a pertinent factor, it is not relevant here.

Common Themes

The number of cases examined was relatively small in terms of statistical analysis but nevertheless, there were some common themes, and these would be reflected in the everyday practice of clinical negligence lawyers working on behalf of claimants. History taking, recording examinations, negative findings and missing documentation are the common factors. Following on from that, there are failures in communication and referral delays.

The NHS has taken some time to look at how they can deal with these matters and what individual factors may impact on decisions made such as fatigue, distraction, poor communication and so on. They have also argued that there should be proper facilities for imaging within the emergency departments throughout the country and some more multidisciplinary training.

Sadly however, one of the conclusions of their report is that over the last three years NHS Resolution have undertaken a number of these reviews over various specialities but the themes identified highlighted a very similar range of contributing factors. In short, they are not quite reinventing the wheel, but the cynics might argue that if these issues had been raised before they had an opportunity to correct them.

There is nothing in the NHSR report that comes as any surprise to any claimant clinical negligence lawyer. I have several cases dealing with a clinical negligence in the emergency department (ED) and quite often it is delay, poor documentation and failing to communicate that causes the difficulties. Unless the NHS sets in place the protocols and complies with them, and indeed gets the proper funding to do so, there will always be these issues arising. It is not clear how many NHS ED staff not only have access to this report, which is in the public domain, but will have the opportunity to review it and apply some of its points and conclusions to the work that they do. It is one thing to produce the work, it is quite another to have an effect with it. It is to be hoped that the NHS Resolution gets the opportunity to discuss these issues with practitioners in the field.

Education

For claimant lawyers, the reports confirm that the issues about which we have been complaining for many years and how little progress appears to have been made. Negligence claims and complaints are an obvious source of material for educational purposes. Most claimant clinical negligence lawyers would hope that these reviews actually start to achieve a reduction by being are utilised properly by practitioners in the various departments.

Until such time as these depressingly repetitive problems are considered and protocols are put in place to ensure issues are reviewed properly, claimant clinical negligence lawyers will continue to see clients who have suffered as a result. The tragedy is that the educational material is available, but the will and resources needs to be there to make changes. It is in everyone’s interests that the NHS does so.