Medical negligence claims and the role of the Intensivist

24 Oct 2019

Every year in the UK, over 270,000 adults are admitted to an intensive care unit. For the majority of patients, treatment is successful but the Department of Health estimates that around 10% of hospital inpatient admissions gives rise to an adverse event. Depending on the seriousness of the incident and the outcome for the patient, a compensation claim may follow, but less than 2% of claims actually result in court action. However, in recent years there has been a rise in both the number of claims for negligence and the value of these claims.

The number of claims registered with the NHS’s Clinical Negligence Scheme for Trusts has doubled in a 10-year period, rising from 5,300 in 2006-07 to 10,600 in 2016-17. The increase in high-value claims for birth injuries has been particularly marked, rising at 9% annually over the same time frame. The cost of settling negligence claims has also risen sharply, from £0.4 billion in 2006-07 to £2.4 billion in 2018-19. It has been estimated that by 2020, the NHS will be paying out £3.2 billion per year in compensation. However, many of the payments made relate to incidents that occurred some years ago, as there can be a considerable length of time between the occurrence of an incident, lodging of a claim and making a final settlement. The average clinical negligence case takes 5½ years from inception to conclusion, and there is some evidence that high-cost claims take longer to close than lower-value cases.

An analysis of all medical negligence claims related to intensive care units (ICU) during the period 1995-2012 showed that, compared to anaesthetic practice, the frequency of claims, and the costs of these claims, is much higher for ICU patients. Furthermore, the majority of claims following ICU care related to a severe or fatal outcome. The commonest category of claim related to positioning, nursing standards and skin care, and mostly concerned claims for pressure sores. Other common categories were infection, of which one-quarter alleged hospital-acquired MRSA; respiratory/airways; paediatric care and vascular access. Claims relating to delayed or inadequate treatment, failure to monitor or identify deterioration and missed or delayed diagnosis were much fewer in number but generally resulted in a higher risk of a serious outcome, or death, for the patient and, consequently, a much higher payout. Claims relating to end-of-life care are unusual but may become more common as the population ages.

Prior to the 20th century, claims against doctors for negligence were extremely rare. This is partly because, at that point in time, any such claim would be based upon a breach of contract. However, the doctor-patient relationship does not fall easily into this category and thus proving such a claim would have been very difficult. However, the 1932 case of Donoghue v Stevenson brought about a major change in how cases were viewed. Mrs Donoghue was drinking from a bottle, bought by a friend, when she discovered a decomposing snail in it. After suffering illness, she successfully sued the bottle maker for negligent manufacture. This judgment has formed the basis of all personal injury cases since then.

In order to prove that negligence has occurred, a three-stage test must be satisfied. This sets out that a patient is owed a duty of care, and if that is breached and as a result the patient suffers harm, negligence has occurred. Therefore, a successful claim is reliant upon establishing fault on the part of the doctor. It is important to note that errors of judgement do not necessarily constitute negligence, which would only be considered to have occurred where a doctor has not acted with a level of care expected from any reasonably competent professional.

Nowadays, most medical negligence cases are judged according to the ‘Bolam test’. This refers to a case in which a mental health patient suffered injury following electro-convulsive treatment, after he fell from a couch. The patient claimed that he should either have been given relaxant drugs or restrained in some way, or warned of the risks of the procedure. However, the judge ruled that provided the actions of a doctor are accepted as appropriate by other doctors practicing in the same field, he or she is not negligent merely because other doctors would take a different view.

This decision highlights why the evidence of medical experts is crucial to the outcome of a case. The most common reason for an unsuccessful medical negligence claim is a failure to establish causation. This is because there are often multiple possible explanations for the outcome. However, evidence that the breach materially contributed to the damage, or that it is more likely that the damage was due to negligence than due to any other reason, usually results in settlement of the claim. With their vast experience in dealing with complex cases on a daily basis, an intensivist is in a unique position to offer an opinion on the likely cause of a patient’s condition. They will also be able to interpret the patient’s records, which will be vital in defending a medical negligence claim. Furthermore, good ICU care, overseen by an experienced intensivist, might even avoid many potential claims being made in the first place.

About Dr Stotz

Dr Stotz is a Consultant in Intensive Care and Anaesthesia at St Mary’s Hospital in London, where he leads a multi-disciplinary team.  St Mary’s is a major trauma centre and part of Imperial College NHS Trust. Dr Stotz is also an Expert witness in Intensive Care Medicine (Intensivist) and can provide expert opinion on a range of cases relating to the clinical management of critically ill patients.

Further reading:

Bryden D, Storey I. Duty of care and medical negligence. BJA Educ. 2011 Jun 19;11(4):124–7.  

Pascall E, Trehane S-J, Georgiou A, Cook TM. Litigation associated with intensive care unit treatment in England: an analysis of NHSLA data 1995–2012. BJA Br J Anaesth. 2015 Sep 14;115(4):601–7.