Is A Lawsuit Always Needed When Something Goes Wrong? – Guest Post by Sandy Atwood

Over the past decade, doctors have becoming increasingly vulnerable to lawsuits being brought against them by their patients. It appears that some patients are actively seeking reasons to sue their medical practitioners to generate some spare cash. In its 2012 annual report, the NHS Litigation Authority (NHSLA) reported that 9,143 clinical claims were raised against NHS Trusts during 2011-12, together with 4,618 non-clinical claims. Of the 14,171 claims closed by the NHSLA in 2011-12, 37% were resolved without payment of damages to the claimant. Clearly, a high number of claims are reaching court that could have been settled without a lawsuit being raised.

There are several reasons why patients may suddenly initiate court action, despite the medical staff performing their jobs efficiently and effectively. One of the main causes of spurious claims is the unrealistic expectations of the patient. Unrealistic expectations can persist even when a doctor or surgeon has clearly laid out the risks and possible pitfalls of treatment. Some patients only hear the parts of the preoperative information that they want to hear. A good example of this is a case that was brought against a specialist orthopaedic surgeon in 2003. The surgeon had successfully repaired damage to the patient’s clavicle. However, prior to the operation, he had stressed the possibility that the surgery could lead to scarring and may not be 100% successful. Five years after the initial surgery, the patient raised a claim against the surgeon. While the outcome of the operation fell within the possible options he had outlined, the patient had become unhappy with the results. However, a psychiatric report linked the patient’s unhappiness due to other life events, rather than the outcome of the surgery. The claim was defended and ultimately dropped by the claimant.

Patients occasionally raise claims against their doctors simply because the treatment they have experienced was uncomfortable or unpleasant. In a case that was successfully defended by MPS, the world’s leading mutual medical defence organisation, the family of a toddler sued because she was subjected to an examination that involved torchlight being shone in to her eye. They also alleged that the ophthalmologist had failed to operate quickly enough, with the operation delayed for 22 hours until a course of antibiotics could be administered. Expert opinion supported the course of treatment administered and stated that the sight in the child’s eye had been saved by the ophthalmologist’s actions. The claimants failed to attend at court and the case was dismissed.

Of course, some claims arise because something has gone wrong with a medical procedure. However, simply because a patient experiences complications, it does not automatically follow that the doctor was negligent, no matter how serious the consequences. Following an operation to address his severe back pain, a patient experienced complications, including internal bleeding, septicaemia and multiple organ failure. He subsequently died and the family raised a claim against the surgeon. However, the court found in favour of the surgeon because his technique was exemplary and there was no evidence of negligence.

Although modern medicine has reduced the risk of treatment and surgery, they are not risk-free. However, doctors must be up-front and honest with patients to ensure the risks of a particular treatment are fully understood if they want to avoid unnecessary claims.

Author Bio:

Guest post contributed by Sandy Atwood, on behalf of Lawyers.com. Sandy studies education law and in her spare time, she takes an interest in and writes about the various lawsuits.

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6 Comments

Filed under Damages Claims, Guest Posts

6 responses to “Is A Lawsuit Always Needed When Something Goes Wrong? – Guest Post by Sandy Atwood

  1. mick

    hi sandy am a laymen poster on pauls site but a feel with the cuts law suits will increase and make it harder for the health service to preform to it best due to funding also this could lead to top medics going to other countrys due to stress of it all ,we all know our doctors and nurse,s are under alot of stress and presure and are not getting the support they need due to cameron feeding the banks instead of the nhs ,its got to a stage were the public are losing confidence in it all which is sad ,also the nhs staff are suffering and are helpless ,it is right they are liabile but commen sence has to privial in every case also we are becoming like( america al sue you) also we have to take in to account of human era the medics are only human so every now and agian there will be mistakes its the same in all professions ,my point is the goverment should be sued not the health service as its the goverment you pay N.I.to so they should foot the bill not the health service skeliton staff levels lead to deaths cameron knows this but he use,s bupa so he doent care
    privitisaion of manual staff carers and cleaners has also played a big factor in the stats ,flesh eating bugs etc,patients want a drink the list is endless ,
    well in sandy nice to see some1 highlighting (the al sue you)mantality.

  2. mick

    “CUTS LEAD TO LAWSUITS”

  3. ecojon

    @Sandy

    I thought Paul set posers – big subject and I constructed a brilliant response and then closed my browser down accidentally and lost all those pearls of wisdom 🙂

    I’ll have a coffee and try again – will come to completely different conclusions no doubt 🙂

  4. ecojon

    @Sandy

    My first post which I ‘lost’ was not only too wide-ranging but too simplistic and faulty because I had accepted too willingly the figures in the first paragraph as being meaningful for my reasoning.

    I am always wary of commenting on a complex issue when I only have a tiny fragment of the statistics required to make even a half-decent stab at a solution.

    The basic necessity is to have yearly figures of new cases for the last 10 years to ascertain the ‘growth’ of any problem. We also really need to know the split between ‘clinical’ and ‘non-clinical’ and actually define those two terms.

    But there’s a real roadblock in getting to grips with the issue because you state: ‘Of the 14,171 claims closed by the NHSLA in 2011-12, 37% were resolved without payment of damages to the claimant.’

    The problem is of course that this seductively misleads us away from the real figures. It is easy to say these statistics prove that almost 40% of cases closed in 2011-12 didn’t cost the taxpayer a penny in damages but of course cost them dearly in what could be regarded as unnecessary costs.

    But, of course, it’s not as simple as that. Because many medical claims take years to settle especially the serious and potentially big damages cases.

    So in any year the actual cases closed most definitely won’t all have been opened in the same year but will stretch back for possibly up to seven different opening years. So the figure we need is found by looking at the cases lodged say 7 years ago and then tracking (for that starting year) the number and percentage of them settled each year for 7 years which will give us a ‘correct’ figure not skewed by fresh cases and declining settlement pattern if taken only at the 7th year ‘window’.

    Obviously with a bit of statistical analysis we could move up our starting year in yearly increments and establish the % of each new year being settled in years 1-7. Losing myself here but hopefully you follow my drift.

    It again is tempting to assume that the percentages would remain roughly the same in each year for the different years’ settling and therefore just use that figure as in the first paragraph. But if we do that how do we know what the trend is – is it rising or falling. Nope the hard stats have to be produced.

    I don’t know Sandy if these figures exist or are easy to get to but they would help. It would also be helpful to see the figures split into the clinical and non-clinical. I assume clinical is personal negligence by medical staff and the attendant consequences and non-clinical is the likes of food complaints like my pie is cold – that’s for you mick 🙂

    Let me know if you can’t get figs as there are general issues I could address.

  5. Hugh McVey

    Well said, Sandy. We have a brilliant and dedicated team of people in our National Health Service, often working under difficult conditions, but not compromising the care, health and safety of the patient. What is SICK is these Ambulance Chasers encouraging people to attempt to sue honest, hard-working people (and our taxes) so they can get a hefty percentage.

  6. Chriske

    Great post Sandy and thank you. Let’s face it, no one cuts the wrong arm off intentionally and accidents can happen to everyone. The man who doesn’t make a mistake never did any work. IMHO it would help to take medical compensation cases out of the adversarial Courts and place their settlement somewhere else. A vain hope you may say, but I am sure it can be done with the correct legislation. Then the brave people who work in the NHS would no longer be afraid of their shadows. For me a NHS National Medical Tribunal could deal with compensation claims in a much better way. Just saying.

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