Clinical negligence lawyers can help foster a culture of transparency and openness to support both NHS patients and staff, argues Kate Rohde

A recent National Audit Office report revealed a significant proportion of NHS maternity services funding is spent on dealing with medical negligence claims. Predictably, there were calls for the money to be used for midwives rather than compensation and lawyers’ fees.

‘Many medics fear a negligence claim will be a career ending event but this is not so’

The report also said an increased tendency towards litigation “highlights the importance of improving risk management and the safety of care”. This is a statement I agree with.

Lawyers like me who represent patients have, in the past, been portrayed as ambulance chasers, creating a blame culture and generally hindering sound resourcing and leadership. I would like to offer a counter-view.

What I observe, highlighted by the press and a spate of high profile medical scandals such as Mid Staffs, is the public renegotiating its relationship with the NHS and the professionals within it. A recurrent theme is how to ensure patients are placed at the centre of the services the NHS delivers.

I believe clinical negligence lawyers can contribute to an intelligent debate about how an environment of transparency and openness, supportive of both patients and professionals, can evolve.

Using lawyers constructively

I spoke at the Faculty of Medical Leadership and Management’s annual conference on this topic, calling for a more constructive working relationship between lawyers and the medical profession.

Our access to first-hand accounts of negative patient experiences puts us in a unique position to assist an organisation prepared to listen and learn from previous mistakes.

The clinical negligence lawyer sees damaged, usually upset, sometimes angry people when they have a particular issue with the care provided to them. We are, however, just part of the process; we are called in to help after the medical profession has made a mistake. We all serve the same public.

A common and powerful motivation for our clients is that they want important lessons to be learned so others don’t suffer in the same way.

‘The benefits law could offer a healthcare system willing to learn from its mistakes are significant’

I have to tell my clients that, in the current system, I cannot ensure the mistakes will be seen as an opportunity to learn or that their prevention will be prioritised in future. What I do know is that often the mistake is an “honest” error by an overworked clinician trying to do his or her best in very difficult circumstances.

It is a complex and challenging situation for the clinician and the patient and both, in a sense, are victims of the inadequacies of the system.

Misplaced fear of litigation

Many medics fear a negligence claim will be a career ending event but this is not so. There is no trial by jury or “guilty” verdict in a civil claim. The reality is that the vast majority of negligence claims settle quietly out of court.

Of course, genuine negligence cases where there has been substandard care will always progress to settlement or, rarely, to trial simply because victims deserve recompense. Establishing the definition of “substandard” is achieved by the objective peer input of medical experts.

Lawyers and the law should not be feared − they should be understood. The benefits law could offer a healthcare system willing to learn from its mistakes are significant.

‘Openness and accountability in the health service will help to drive up standards and reduce growing negligence bills’

It could encourage medical leaders to create an environment where the organisation looks at patterns to work out if they relate to failures in system, shortcomings in training or the attitude of a cohort of staff − and then empower them to fearlessly tackle the issue.

The airline industry provides a paradigm here. Near misses are always reported. When there is a failure it is immediately scrutinised so that the cause can be established. The commercial imperative and obvious large scale, cataclysmic potential drives detailed analysis but significant action results.

I believe many professionals want such a culture shift within the NHS so that it becomes permissible to openly admit there was a failure.

Admitting to errors

Mistakes will occur in a complex environment such as the NHS. Ensuring lessons are learned from them and that professionals and patients are supported when they happen is, in my view, something to aim for.

A duty of candour is the start of a debate with the patient but the NHS could also learn from doing a better job of listening to injured patients. Lawyers can help in that process.

Openness and accountability in the health service will help to drive up standards and, in turn, reduce growing negligence bills that we see hitting the headlines.

Furthermore, if failures are seen as a collective responsibility, then the culture that will evolve is one of mutual support and commitment to improvement − improvements that, when they come, can engender collective pride, help rebuild trust and save lives.

Kate Rohde is head of clinical negligence at Kingsley Napley LLP