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An analysis of successful litigation claims in children in England
  1. Joseph E Raine
  1. Correspondence to Joseph E Raine, Department of Paediatrics, Whittington Hospital, Jenner Building, Magdala Avenue, London N19 5NF, UK; joseph.raine{at}whittington.nhs.uk

Abstract

Objective To analyse the number of successful claims against the National Health Service (NHS) involving children, the nature and outcome of incidents leading to litigation and the costs of claims.

Method Under the Freedom of Information Act, details were sought of claims involving children made to the National Health Service Litigation Authority (NHSLA) from 1 April 2005 to 31 March 2010 together with the claim status on 30 September 2010. Closed cases involving financial compensation were analysed in relation to the nature of the incident, outcome and total cost of litigation.

Results 195 closed cases were examined. The commonest causes of litigation were medication or vaccination errors (10), delayed septicaemia diagnosis (8), delayed meningitis diagnosis (7), delayed unspecified sepsis diagnosis (7), extravasation (7), delayed anorectal abnormality diagnosis (6), delayed cardiological diagnosis (6), delayed appendicitis diagnosis (6), epilepsy misdiagnosis (6), psychological/psychiatric effects on parent(s) following a medical error (4), delayed fracture diagnosis (4), gastrostomy related errors (3) and delayed testicular torsion diagnosis (3). The commonest outcomes were death (74), unnecessary pain (35), unnecessary operation (16), brain damage (12), scarring (12), psychiatric/psychological morbidity in parent(s) and/or child (10) and amputation (5). Total costs of litigation ranged from £600 to £3 044 943 (mean £127 975).

Conclusion Delayed diagnosis of severe sepsis is the commonest adverse incident leading to successful litigation and the commonest adverse outcome is death. The cost to the NHS is considerable. A better understanding of the causes of common errors in paediatrics should inform training and help to decrease these adverse events.

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Introduction

It is a sad fact that the best lessons in life often result from making an error. In medicine one hopes to minimise the risk of mistakes and that the lessons learnt from making an error will help avoid its recurrence. In 2000 Professor Liam Donaldson headed a government committee which published a report called An Organisation with a Memory.1 This report recognised the many errors made in the National Health Service (NHS) and suggested ways in which one could learn from previous errors and improve patient safety. Recently this journal has addressed such issues with an editorial on negligence among paediatricians by Dr Marcovitch2 and an article on paediatric malpractice claims in France by Najaf‑Zadeh et al.3 In this paper paediatric data from the National Health Service Litigation Authority (NHSLA) were analysed to determine the commonest events that result in litigation, their causes and consequences and the cost to the NHS.

Method

All NHS trusts in England are covered by the Clinical Negligence Scheme for Trusts. The NHSLA is the body that handles claims made against NHS trusts and it receives numerous claims relating to children each year.

The Freedom of Information department of the NHSLA was contacted in order to obtain a record of claims involving children in the last 5 years. Details of cases reported to the NHSLA from 1 April 2005 to 31 March 2010 together with the status of the claim on 30 September 2010 were received. The NHSLA data documented whether the claim was open or closed, the incident year, the notification year, the incident details, the cause of the incident, the injury sustained, the specialty or subspecialty involved, the total cost of the litigation and the damages paid to the claimant. The closed cases in which the claimant received compensation were analysed.

Results

Of the 469 (42%) closed cases in the 5-year period, 195 (42%) resulted in the payment of damages to the claimant, including seven cases of children with brain damage where there are continuing intermittent payments to the claimant. The incidents occurred between 1 April 2005 and 31 March 2010. The length of time between the incident and notification to the NHSLA ranged from <1 to 13 years, with a median of 2 years. The nature of the incidents that led to litigation, the causes of the incidents, and the results and injuries sustained are itemised in tables 13, respectively.

Table 1

Incidents leading to successful litigation, 1 April 2005 to 31 March 2010

Table 2

Causes of incidents leading to successful litigation, 1 April 2005 to 31 March 2010

Table 3

The results of injuries sustained due to the incidents that led to successful litigation, 1 April 2005 to 31 March 2010

The specialty involved was paediatrics in 124 (64%) cases, neonatology in 40 (21%) cases, paediatric surgery including the different surgical subspecialties in 29 (15%) cases and anaesthetics in two (1%) cases. The total cost of litigation ranged from £600 to £3 044 943 (mean £127 975). The damages paid to the claimant ranged from £500 to £2 575 736 (mean £85 552).

Discussion

The NHSLA database is compiled primarily to monitor claims and not for clinical purposes. As a result it may contain inaccuracies. The nature of the incident is usually clear, but the cause of the incident, the injury and the specialty classification may occasionally be inaccurate.

The author also approached a number of other regulatory bodies and organisations that hold information on medical errors. However, due to problems with the classification of these data and concerns about patient confidentiality, very little of this information was accessible. Thus, while there is no doubt that there is a great deal of information on errors, in practice it is not readily available. Thus in spite of its limitations, the NHSLA database is the single best available source of information on paediatric errors in England.

Only a minority of complaints develop into claims handled by the NHSLA and of those the majority are settled out of court or abandoned by the claimant. Court cases can be very expensive and time consuming and can have an unpredictable outcome. Only 4% of NHSLA claims actually reach court and in this analysis it has been assumed that the payment of damages by the NHSLA to the claimant indicates that an error was made, although this may not always the case.

The commonest incidents related to a delay or failure in diagnosing infections, particularly septicaemia and meningitis. Medication errors were also common and will hopefully lessen with the development of electronic prescribing that can check drug doses and drug interactions. Although many of the cases that led to litigation were predictable, others such as delays in diagnosing anorectal malformations, misdiagnosis of epilepsy and gastrostomy related errors were less expected. Psychological and psychiatric effects on a parent or child as a result of an error also led to litigation. Technical problems with medical devices such as cold lights and potentially avoidable nursing issues such as pressure sores call for better training in the use of medical devices and more vigilance in the monitoring of pressure sores.

In Carroll and Buddenbaum's data from the Physician Insurers Association of America, the five most common events that led to claims were brain damage to infants, meningitis, ‘routine infant or child health check’, neonatal respiratory problems and appendicitis. Nearly half (43%) of the incidents occurred in an ‘office paediatrics’ setting, out of hospital.4 In Najaf-Zadeh et al's survey of paediatric malpractice in France, the commonest reasons for claims were meningitis, dehydration, malignancy, pneumonia and appendicitis. However, the French data excluded infants under 1 month of age and dealt mainly with adverse incidents in general practice.3

The causes of the errors were very much as expected, with a delay or failure in diagnosis and treatment being by far the most common. This is in keeping with Carroll and Buddenbaum's observations and Najaf-Zadeh et al's data in which an incorrect diagnosis was the commonest cause of an error in 32% and 47% of cases, respectively.3 4 The NHSLA data do not provide information on the underlying reasons for these errors, which may be due to individual mistakes and/or process errors. Inadequate nursing care was another cause of errors and emphasises the importance of team working and efficient communication between doctors and nurses. Close observation of infusions, especially those in which extravasation can lead to tissue damage, is also necessary to avoid another common cause of litigation. Failure to consider the possible complications of a disease or its treatment (eg, a ventriculoperitoneal shunt infection) was another source of errors.

Most medical errors result in no harm. However, in this study of the small number of adverse events that led to successful claims against the NHS, the commonest result of an error was death. Unnecessary pain was the second commonest result and may reflect on the adequacy of pain management. Psychiatric and psychological morbidity in the parent(s) and/or child as well as being a cause of litigation were also results of an adverse incident. Additional surgery was also a common result of an adverse event. The fourth commonest injury was brain damage.

Successful litigious complaints were commonest in paediatric medicine (64%) and second commonest in neonatology (21%). Obstetric claims which may relate to cases of cerebral palsy and developmental delay in infants and children were not part of the NHSLA paediatric database.

The physical and psychological consequences to the child and their family of these adverse incidents can be very high. The financial cost to the NHS, especially in this age of limited funding and cuts in public services, is considerable. The largest claims resulted from cases that had led to brain damage. In some of these cases there are continuing intermittent payments which are planned for the duration of the claimant's life.

Many hospitals now have a clinical risk department. However, feedback and the dissemination of lessons from errors is often limited. Regrettably, the same error may have to recur several times before effective action is taken.5 Despite the encouragement of the former Chief Medical Officer, Professor Sir Liam Donaldson, for doctors and hospitals to learn from their mistakes, this is only happening to a limited extent. Furthermore, the more open culture in which errors and service failures can be reported and discussed has still not materialised.

Publications such as Why Children Die6 from the Centre for Maternal and Child Enquiries provide useful educational information. There is also a surgical online site, CORESS,7 sponsored by the Association of Surgeons of Great Britain and Ireland, which enables the confidential reporting of surgical errors with the aim of improving patient safety and of providing an important educational resource. A similar paediatric site would be very useful.

It is regrettable that institutions tasked to deal with errors often do not classify their data in a manner that is conducive to its analysis.2 Doing so would help to produce a useful national picture of common errors in paediatrics and other medical specialties.

It is hoped that the information provided about errors in this article will inform the training of junior doctors and nurses and in so doing will help avoid the recurrence of errors and improve the safety of medical and nursing practice.

References

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Footnotes

  • Competing interests None.

  • Provenance and peer review Not commissioned; externally peer reviewed.

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