In the UK, the NHS received 15,078 medical negligence claims in 2021/22 and 13,071 reached a settlement. That means over 86% of claims received by the NHS result in a successful settlement for the claimant. The NHS alone paid out £2.4 billion in claims in 2021/22, and these costs appear to be on an annual upward trajectory. So, given the high success rate of claims against the UK’s largest healthcare organisation, how can other healthcare providers in the private sector better protect themselves against such claims?
Outlined below are some of the common questions healthcare business owners need to ask themselves, together with tips on minimising the risk posed by patients seeking claims.
What is the definition of medical negligence?
Medical negligence, sometimes referred to as medical malpractice, is failure on the part of a healthcare professional or organisation to provide appropriate care to a patient, resulting in harm or injury. This occurs when a healthcare provider’s behaviour or failure to act results in them not delivering a standard of care that could be reasonably expected by other healthcare professionals in similar circumstances.
Medical negligence can take many forms, such as a misdiagnosis, a medication error, a surgical error, hospital negligence, or a failure to diagnose a condition. It is important to note that not all adverse outcomes are the result of medical negligence. To prove medical negligence, it must be demonstrated that the healthcare professional failed to provide a duty of care and that this failure caused the patient harm or injury.
What is a duty of care and how is it decided if it has been breached?
Duty of care is a legal obligation that healthcare professionals and organisations must provide a certain standard of care to their patients. This means that they are responsible for taking reasonable steps to ensure that their patients are not harmed during their medical treatment.
Whether a healthcare professional or organisation has breached their duty of care is determined by evaluating whether their actions or omissions fell below the standard of care that a reasonable and prudent healthcare professional or organisation would provide in similar circumstances.
The standard of care is typically determined by medical experts in the same or similar field as the healthcare professional or organisation that has been accused of negligence.
Such experts will consider factors such as the patient’s medical history, the nature of the patient’s condition, and the generally accepted medical practices and protocols for treating that condition.
If a healthcare professional or organisation fails to provide care that meets the expected standard of care, and this failure causes harm or injury to the patient, it may be determined that they breached their duty of care. However, it’s important to note that not all adverse outcomes are the result of a breach of duty of care, as some medical treatments or procedures have inherent risks that cannot be eliminated.
In cases where there is a dispute as to whether a healthcare professional or organisation breached their duty of care, expert witnesses may be called upon to provide testimony and help determine whether a breach occurred.
Can a healthcare organisation call expert witnesses to defend themselves against medical negligence claims?
Yes. One of the most important defences a healthcare organisation has against claims of negligence, that they believe to have no basis, is in calling expert witnesses. Expert witnesses are individuals who have specialised knowledge, training, or experience in a particular field, such as a particular type of surgery or disease. They can provide testimony in court to help explain complex medical issues and to support the healthcare provider in defending themselves against the claimant.
Expert witnesses may be called upon to provide testimony in a variety of areas, including the expected standard of care for a particular medical condition, whether the healthcare provider’s actions met the expected standard of care, and whether the patient’s injuries were caused by the healthcare provider or other factors not under the provider’s control.
Expert witness testimony is a key factor in determining medical negligence claims. As such, it is vital for healthcare organisations to choose both their legal representatives and expert witnesses carefully.
How can healthcare businesses protect themselves against medical negligence claims?
If you are the owner or manager of a healthcare business, their multiple steps that you can take to limit the threat posed by patients bringing medical negligence claims against you.
This includes the following:
- Maintaining accurate and detailed records – be sure to keep detailed records of all interactions with your patients, and clearly document their test results and treatment plans. These records are vital in the event of a negligence claim by providing a clear record of the care that was provided to the patient.
- Implementing quality control measures – it is vital to ensure that you have systems in place that enable staff members to provide care that meets the expected standards. This can include regular training and continuing education for your team, as well as regular audits of patient care.
- Maintaining adequate insurance coverage – be sure to maintain sufficient liability insurance coverage to protect against negligence claims. This can include professional liability insurance, also known as malpractice insurance, which is designed to cover claims related to medical negligence.
- Communicating effectively with patients – be consistent in how you communicate with your patients. Be sure to clearly communicate any risk they face, provide full details of treatment options, and ensure you have fully accommodated any specific needs they have such as allergies or mobility issues. Ensure you have documented these communications clearly.
- Addressing patient complaints promptly – make sure you have a system in place for addressing patient complaints, including a formal process for investigating and resolving them in a timely and effective manner.
- Adhering to regulatory requirements – Healthcare businesses should ensure that they follow all applicable laws and regulations related to the provision of healthcare services, including licensing and accreditation requirements.
By implementing these steps, healthcare businesses can help protect themselves against negligence claims and demonstrate their commitment to providing high-quality care to their patients.