Calling for a legal duty to inform patients of medical errors or incidents

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At the age of 39, Colin Freeman’s life fell apart when he suffered a severe and disabling stroke. He was left paralysed down one side and wheelchair-bound, brain-damaged, medically retired from his job as a scientist, and dependent on full-time care.

His stroke was entirely avoidable. He had been admitted to Frimley Park hospital a month before with pneumonia and had developed an infection on his heart. Had his doctors carried out a planned echocardiogram, he would have been properly diagnosed and treated. Instead, he was discharged eight days later no better than on admission.

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Struggling to cope with her husband’s devastating condition and juggling care for her husband and three young children, Iris Freeman complained to the hospital. In response, the hospital did not admit any error or mention any error. Their seven-page letter was a smokescreen of detail. It failed to say that the echocardiogram had not been done. The clinician even said: ‘I do not believe I would have changed any of the care given to him…’.

After a lengthy investigation, however, we forced the Frimley Park Hospital NHS Foundation Trust to admit liability. As a result, Colin has recovered substantial damages, enabling him to have 24-hour paid care at home, adapted accommodation and the means to restore some sort of quality of life. But had the family believed the hospital’s denials, they would still be scraping to make ends meet with inadequate housing and the odd brief visit from a social services carer.

But for Iris’s persistence, she would not have got to the truth. It is wholly wrong that she should have had not only to manage her family in a crisis but also struggle against misleading denials by the hospital.

Medical accidents are more common than we would like. There are estimated to be over one million patient safety incidents in English hospitals each year; half are thought to cause avoidable harm. The Department of Health estimates that one in 10 NHS patients will be unintentionally harmed. Nevertheless, the NHS reports receiving only 5,000 clinical negligence claims a year: 1% of cases. The compensation culture is a myth.

Culture of denialThe National Audit Office reported in 2005 that only 24% of hospital trusts routinely informed patients of patient safety incidents. Some 6% admitted never informing patients. The Department of Health itself admitted that there is a ‘culture of denial’.

The National Audit Office says that 50% of patient safety incidents could have been avoided ‘if only lessons from previous incidents had been learned’. Despite recognition of the need to learn from mistakes, it found that 22% still go unreported. The culture of denial harms individual patients and impedes improvement. Everyone would benefit from greater willingness to acknowledge accidents.

From April 2010, new regulations will require NHS bodies to report patient safety incidents to the National Patient Safety Agency. But there is still no duty to tell the patients.

Action against Medical Accidents (AvMA) and others are calling for a duty of candour to be introduced into English law: a legal duty to inform patients or their next of kin of errors or incidents which may cause harm. There is no such legal duty at present.

In a shocking judgment, the European Court of Human Rights has ruled (William and Anita Powell v the United Kingdom): ‘As the law stands now…doctors have no duty to give parents of a child who died as a result of their negligence a truthful account of the circumstances of the death, nor even to refrain from deliberately falsifying their records.’

The British Medical Association argues that doctors already have a professional duty of candour. This is inadequate. The duty is not enforceable by patients. The professional obligation does not extend to non-clinical staff. And the experience of every clinical negligence practitioner is that it is rare for patients to be told that a poor outcome is due to an avoidable medical error. Colin Freeman’s experience is not unusual. The lack of a duty of candour deprives people like him not only of the right to know what has happened, but the means to recover the cost of their loss.

Paul Sankey is a partner at Russell Jones & Walker. He specialises in clinical negligence and is a member of the specialist Law Society and AvMA clinical negligence panels

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