The NHS Litigation Authority’s figures for 2010-2011 suggest that around 400 patients received damages for catastrophic injuries – brain damage, blindness or Amputation of a limb – as a result of medical mistakes during the last financial year. The figures break down as 215 claims for Brain Injuries, 134 for leg or arm amputations and 56 for blindness. This does not mean they were all injured during the same year but it gives an indication of the number of severe and disabling injuries which could have been avoided by adequate care.
The Mail Online translated this into a headline ‘Eight patients a week maimed by hospital blunders’. That is a sensationalist headline but it actually downplays the scale of the problem for a number of reasons.
First, the figures represent only the figures for damages paid to people who brought Medical Negligence Claims. Despite the media myth of a ‘compensation culture’ (the government’s own research tells us there is no such thing) not all victims of Clinical Negligence bring claims. In fact it is estimated that 1 in 10 patients suffer an avoidable medical accident. Only a tiny percentage bring claims.
Secondly, the figures only tell us the number of cases in which claimants succeeded. Again, despite media myths, succeeding in Clinical Negligence Claims is difficult. The ‘Bolam test’ of what amounts to negligence requires a patient to show not only that care was poor or the outcome bad but that there is no responsible body of doctors of a particular type – even a minority – who would have done the same. The bar of what amounts to acceptable practice for doctors is set very low. And patients are reliant on medical records, documents which may be inaccurate and over which they had no influence. It is always very difficult to prove that a patient told her doctor of a particular symptom which the doctor failed to note when there is bound to be no support for the patient’s case in the records. Further the onus is on the Claimant to prove her case. In a difficult case it is common for Judges to say, ‘I am not sure whose case is correct. The Claimant may be right. But I cannot be sure. The Claimant has failed to persuade me’.
Finally, many patients know they had a bad outcome but are wholly unaware there has been negligence. In the absence of a ‘duty of candour’ on medical and other hospital staff to be open and honest with patients about mistakes, many patients are in the dark.